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

TP-00, TP-04, TP-05, TP-06, TP-07, TP-08, TP-09, TP-10, TP-TP-11, TP-12, TP-14, TP-15, TP-16, TP-17, TP-18, TP-19, TP-20, TP-21, TP-22, (Revision 5, VCAT Amendments Submission)

1. Pursuant to section 87A of the Planning and Environment Act 1987, Planning Permit D/75/2011 is amended and an amended permit is directed to be issued for the land at 161-195 High Street, Preston. The permit is amended as follows.
   • (a) What the permit allows is amended to read as follows:

The demolition of existing buildings, the development of an eight level building (including the level described as the upper basement), the use of the land for dwellings, a reduction in the required car parking and a waiver of the required loading and unloading facility in accordance with the endorsed plans.

(b) Conditions in the permit are amended in accordance with Appendix A.

Mr John Cicero, Solicitor, Best Hooper. He called the following expert witness:

A Statement of Evidence of Mr Way Thai Choong, Architect and 3D artist was filed with the Tribunal but Mr Thai Choong was not required to give evidence at the hearing.

Mr Robert Phillips, Legal Counsel with Ms Louise Lunn, Town Planner, Louise Lunn Planning

Amendment to existing planning permit. The permit authorises the demolition of existing buildings on the site, the construction of a seven level building (including the level described as basement[1]) and shop[2], a reduction in required on-site car parking and a waiver of a loading and unloading facility.

The amendment seeks to increase the number of dwellings from 98 to 114, to add one additional floor level increasing the building height by a maximum of 0.5 metres, reduce the car parking provision from 129 to 119 spaces, replace the home offices with ground level retail tenancies, increase the height of the roof plant area by 1.9 metres, vary setbacks to boundaries, alter the mix and layout of dwellings and amend proposed materials and finishes. The amendment also seeks to change the permit preamble to reference the increase in the number of storeys and to delete permissions that are no longer required.

Application under section 87A of the Planning and Environment Act 1987 - to amend a permit granted by the Tribunal.

Clause 32.01-4 - Construct a building or construct or carry out works in the C1Z

Clause 43.02-2 - Buildings and works within the DDO3

Clause 52.07-1 - Waiving of loading bay requirements

Clauses 9, 10, 11, 15, 16, 17, 21, 22.01 and 22.06 in addition to the matters in clauses 58 and 65[4]

The site is located on the north-west corner of High Street and Gertrude Street, Preston. The site is irregular in shape with a frontage of 62.45 metres to High Street, a frontage to Gertrude Street of 44.49 metres and a western boundary of 38.33 metres, with an overall area of 2,731 square metres.

The site has a fall of approximately 2 metres from east to west. The land was previously developed with industrial buildings however these have been demolished and the land is currently vacant.

Land to the west of the site is zoned Neighbourhood Residential Zone, and is also covered by Heritage Overlay HO170, Bell Railway Precinct. This heritage overlay reflects the mix of early War Service homes and Edwardian dwellings found within the precinct.

The site has two residential abuttals to the west, being No. 4 Gertrude Street, and No. 31 Garnet Street (separated from the review site by a 3 metre wide laneway). North of the review site along High Street are single storey shops. Land opposite on High Street exhibits a number of newer multi-storey buildings which host residential and mixed uses.

An unaccompanied inspection of the site, the adjoining property at No. 4 Gertrude Street and the immediate and broader locality was undertaken by the Tribunal Members on 19 July 2017.

1. Caydon High Street Development Pty Ltd (the Applicant) proposes to develop a multi-storey building at 161-195 High Street, Preston. It has applied to amend the permit granted by the Tribunal for the use and development of the land with associated permissions.
2. The plans submitted with the application were amended in June 2017. The responsible authority indicated that it would not support the proposed changes, and a number of statements of grounds were received from third parties opposing the modifications sought.
3. In summary, the request to amend the planning permit under Section 87A of the Planning and Environment Act 1987 (PE Act) now seeks to[6]:

• increase the number of dwellings from 98 to 114, with a change to the layout and mix of apartments;
  • add a seventh floor (to comprise an eight storey building, with a 'maximum' height of 21.05 metres);
  • reduce car parking on site from 129 to 119 spaces;
  • convert the five ground level home offices to four retail tenancies;
  • alter the building footprint, including setbacks;
  • provide a 2.2 metre high equipment and plant element on the roof (an increase of 1.9 metres compared with the endorsed plans);
  • alter certain building materials; and

1. make associated changes to the permit preamble.[7]
2. The responsible authority indicated that it regarded this suite of changes as an improvement on the previous plans filed in the proceeding but retained concerns with the proposed changes. In summary, the responsible authority considered that:
   • the amendments would not meet the objectives of the current Design and Development Overlay (Schedule 3) (DDO) and the 'package' of changes introduced to the planning scheme via Amendment C137;
   • the streetscape presentation was insufficiently resolved;
   • there would be unacceptable visual bulk to sensitive residential properties to the rear. In particular, it emphasised that the proposed setbacks from the west boundary would present excessive massing and a poor transition in scale, such that the amended proposal would be detrimental to the Gertrude Street streetscape and heritage character and would be contrary to the setback controls contained within the DDO; and
   • the proposal would result in unworkable storage areas for residents of some apartments.
3. A number of the respondents live proximate to the review site. Others are broadly local yet have concerns about the impacts of the changes to approved development. They opposed the amendments on similar grounds to the responsible authority. They were particularly concerned about the certainty of the original decision and associated permit being eroded.
4. In addition, residents emphasised concerns about the urban design response being a lesser outcome than the current proposal and raised amenity issues arising from the interface with a low rise residential area.
5. In arriving at this decision, we have considered all statements of grounds filed with the Tribunal, including those from non-parties.
6. The applicant submitted that the amendments would result in an improved development which would support current policy directions with respect to urban intensification, built form outcomes, activation of streestcapes and would also provide acceptable amenity outcomes to neighbours and future residents.

1. Having considered all the submissions and evidence and inspected the subject land and its locality, we consider that the key issues for our determination are:
   • Does the Tribunal have the power to grant the proposed amendments in light of the DDO which now applies to the land?
   • If so, should the amendments be approved in the exercise of the Tribunal's discretion? What conditions should the amendments be subject to in order to achieve an acceptable outcome overall?
2. To the extent that other issues were raised by the respondents in their statement of grounds, we consider these matters were more peripheral to the key issues or seek to revisit issues that have already been determined in the original approval. This is in the context of the development having the benefit of a current approval, with only the effect of the proposed changes capable of being assessed in this proceeding. On this basis, issues such as considerations of renewable energy use and the like are not determinative in this application.
3. The first question is a threshold legal question which has been answered affirmatively in this proceeding. That is, we find that the Tribunal has the power to amend the permit in a way that would exceed the maximum number of storeys and maximum building height provided in the current DDO. This is on the basis of accrued rights that are afforded by the current permit.
4. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Darebin Planning Scheme and the site's context, we have decided to grant an amended permit generally in line with the amended plans, subject to specified conditions. We have also enhanced the conditions of the permit by reference to the recommendations of Mr Bastone in his evidence. Our reasons follow.

1. Planning Permit D/75/2011 was issued by Darebin City Council on 4 June 2012 following a decision of the Tribunal.[8] The Tribunal held that the proposal was generally in accordance with relevant planning policy and the emerging built form context of the main road/activity centre, but required a reduction in the number of storeys within the proposed development to facilitate an improved built form outcome.
2. In summary, the Tribunal found that there was no imperative for a building on the subject land to necessarily be less than the eight storey preferred maximum height identified at that stage for the core of 'the Junction'. It observed that buildings arising from the then 'recent wave' of redevelopment that had an interface with sensitive residential neighbours were in the order of 5-6 storeys. It also referenced the then preferred height of six storeys on the south side of Bell St adjoining the Bell Railway Heritage Precinct north of Garnet Street as a general reference point.
3. It considered that the site was larger than nearby sites which would allow for more generous setbacks, which would support higher and more intensive development than on nearby sites. At the same time, the Tribunal sought to avoid very intensive or high development forms that would loom above adjoining dwellings to the west, given the fall of the land.
4. In conclusion on the issue of building height, massing and setbacks, the Tribunal explained that[9]:

We acknowledge that the proposed building will undoubtedly be a very imposing structure viewed from the nearby residential properties, even at a reduced height of six storeys. Nevertheless we consider that the proposed building reduced in height to six storeys is both consistent with the strategic context of the land, and the emerging built form character resulting from this strategic context. The design of the western interface of the proposed building, the proposed setbacks and the siting of the communal open space, is in our view a sufficiently appropriate response to this sensitive interface.

1. Plans were endorsed under this planning permit on 6 March 2017. The maximum height of the building was 20.55 metres.[10]
2. At that time, Amendment C137 to the Darebin Planning Scheme had not yet been gazetted. This occurred midway through the proceeding, in advance of the hearing. The main changes of relevance to this proceeding arising from Amendment C137 were re-worked aspects of the Municipal Strategic Statement, the introduction of clause 22.01 relating to The Junction and the introduction of DDO3.
3. Parties were given an opportunity to amend their grounds in the proceeding to reflect the current planning controls and policies.

IS THERE DISCRETION TO APPROVE THE PROPOSED AMENDMENTS IN LIGHT OF THE CURRENT DESIGN AND DEVELOPMENT OVERLAY?[11]

1. The Tribunal was advised that the time for commencement of the development under the permit had been extended by the responsible authority in 2017. Therefore, it would remain current as at the anticipated date of our decision and notionally capable of being amended.
2. A threshold legal question was identified by the parties in the proceeding, being a precursor to the valid exercise of the Tribunal's discretion to amend the permit under section 87A of the PE Act. That question is whether the Tribunal has the power to approve the amendments proposed in the section 87A application (especially as relevant to building height and/or the number of storeys) in light of the DDO3 which now applies to the land.

What does the DDO provide for in respect of this site?

1. As explained above, Schedule 3 to the DDO was gazetted on 1 June 2017 via Amendment C137. The Schedule concerns the area identified as The Junction, with the subject land located towards its north western edge.

1. Clause 2.1.2 of the Schedule relevantly provides:

Any new building must not exceed the maximum height shown on the maps to this schedule. Heights are calculated at 4 metres for a ground floor level and 3 metres per upper floor level plus 1 metre for potential parapets.

The maximum heights shown on the precinct maps to this schedule cannot be varied with a permit.

• For the purpose of this schedule:
  • 6 storeys means a maximum height of 20 metres. . .
• The maximum height applies across the entire site above existing natural ground level, where within the allowable building envelope. Reference points are to be taken from each site corner to direct heights across sloping site levels.
• Rooftop plant and equipment and equipment associated with communal areas can exceed the specified height but such parts should not be visible from the surrounding public realm and adjoining properties to the rear (including laneway separation).

1. In the outline submissions filed with the Tribunal, the applicant conceded that the control would limit a new building on the land to six storeys or 20 metres in height. However, in submissions at the hearing, the applicant subsequently submitted that the DDO restricts the height of a building (to 20 metres) but does not in fact restrict the number of storeys, since clause 2.1.2 refers to a new building not exceeding 'the maximum height' shown on the maps.
2. I find that that the wording and mapping of this particular schedule in combination provide two relevant restrictions for this site - new buildings cannot exceed six storeys, or 20 metres in height.
3. In terms of the map to the schedule, it can be reasonably inferred from the nearby marking of "6" south of Gertrude Street that the subject land is included within an area of six storey maximum height, assisted by the horizontal red line demarcating the relevant area north of Oakover Road as an area of six storey maximum building height. It is clear that the site itself is identified as a strategic site within the Junction map.
4. While there is no maximum height in terms of metres specified for buildings in the map attached to the schedule (being an anomaly), this is clearly specified in the wording of the provision itself and its intention is obvious in this regard.
5. Maximum building height can be prescribed in a number of ways. In the case of this DDO, it is evident that both measures (i.e. storeys and a measured maximum height) were intended to be used together to avoid any doubt, particularly given the mandatory nature of the control.[12]
6. I consider that this analysis of the controls applying to the subject land is generally consistent with the suite of documentation accompanying the relevant Panel Report and the analysis of the Panel.[13] This interpretation is also consistent with the parent provision of the DDO which enables a schedule to include requirements pertaining to building height or other requirements relating to the design or built form of new development.
7. Nevertheless, it would be significantly desirable for the map to the schedule to be amended sooner rather than later to clearly depict the number of levels and maximum heights for all mapped properties to avoid future doubt.
8. The issue of the angle of the rear setback was addressed in submissions concerning the merits of the proposed amendments. In my opinion, comparable issues arise in respect of the restriction in clause 2.1.3 of the Schedule, which appears to nominate mandatory rear setbacks where there is an adjoining residential site.
9. In reality, these are far exceeded by the current approval and would be perpetuated in the amended proposal. This is especially the case for the upper levels of the building which must otherwise be set back at a 30 degree angle from adjoining residential sites to the rear, as identified in Map 1.
10. There are no express transitional provisions that accompany this schedule, and ordinarily, any proposal would need to be addressed against all provisions of this overlay.

1. The responsible authority submitted that the effect of the DDO provisions was that a decision maker would be precluded from amending a planning permit to allow the construction of a building with a height above six storeys or 20 metres on the subject land i.e. the current maximum specified in the DDO.
2. Alternatively, it submitted that the height of the approved building including any variations was limited to the nominated maximum height of the building depicted on the current version of the endorsed plans (i.e. 20.55 metres), by virtue of accrued rights under the permit.
3. By contrast, the permit applicant submitted that the Tribunal has the power to amend an existing permit that already exceeds the maximum height/storey limit under the current controls, subject to such an outcome being supported on the planning merits. It considered that this ability was not constrained by the maximum building height shown on any particular set of plans.
4. Submissions were made on behalf of the permit holder about the potential difference between the grant of a permit versus the amendment of a permit.[14] This was raised in the context of an application under section 87A of the PE Act, to suggest that the operative provisions of the DDO that would prevent the restriction being varied would not apply to an amendment to an existing permit.
5. I am not persuaded that this distinction is valid having regard to the particular wording used in the schedule.[15] The wording in the relevant clause of the DDO specifies the maximum height restriction that "cannot be varied with a permit".[16] This does not single out the 'grant' of a permit as compared to its 'amendment'. In these circumstances, I consider that either action would most likely be caught by the restriction.[17] Amending the permit by whatever mechanism would appear to contravene the applicable controls, in the absence of the operation of accrued rights.

1. On numerous occasions, the Tribunal has held that a permit can lawfully be amended so as to permit alteration to or expansion of an approved use or development that would otherwise be prohibited under the current planning scheme controls.[18] The recent decision of the Tribunal in Gembrook Pines Pty Ltd v Glen Eira CC.[19] further confirms the existence of accrued rights and opportunities for lawful amendment of the original permission in these circumstances
2. Although the detailed reasoning in some Tribunal decisions on this point differs to some extent, I find that the underlying reasoning remains equally applicable to the facts of this proceeding. The answer hinges on the concept of accrued rights under the permit, in so far as these are protected by section 28(2)(e) of the Interpretation of Legislation Act 1984 (ILA). That section provides:

(2) Where a subordinate instrument or a provision of a subordinate instrument -

(b) expires, lapses or otherwise ceases to have effect -

the repeal, amendment, expiry, lapsing or ceasing to have effect of that subordinate instrument or provision shall not, unless the contrary intention expressly appears -

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision.

1. The parties agreed that the development has been approved at a number of storeys and a maximum height which are above those now specified for the relevant area in the DDO.[20] It has also been approved with reduced setbacks compared with the current mandatory suite of provisions. Essentially, the current approval takes the benefit of the earlier suite of planning scheme provisions which did not prescribe mandatory controls pertaining to height or setbacks.[21]
2. It is relevant that there is no indication in the current DDO3 provisions that the maximum height restriction or staggered setback requirements are intended to operate retrospectively.
3. In my opinion, in line with relevant case law, this has significant consequences for opportunities to vary this permit, which extend beyond the current requirements in the planning scheme. This represents rights or privileges that have been accrued under the permit to exceed the current controls pertaining to maximum building height and minimum setbacks, amongst other restrictions.
4. A further question that arose in the current proceeding is how to define the right that has accrued under the permit - is it a right to construct a building above the current prescribed maximum height, or is it a right to construct a building to a specified level?
5. The responsible authority submitted that the extent of any accrued right in this case is confined by the precise maximum height of the building depicted on the set of plans endorsed under the permit immediately before the gazettal date. Consequently, it submitted that the accrued right is to construct a building with a maximum height of 20.55 metres. The amended proposal would seek to increase this maximum height by approximately 500mm in addition to providing an extra storey of apartments.[22]
6. With respect, I find this submission misguided. At the time the permit was granted, a building could lawfully be approved on the subject land to an unrestricted height. In this context, the measurement of 20.55 metres is almost arbitrary since it was not referenced to any height limitation in the scheme at the time. A building of seven storeys could have been approved consistently with the Tribunal's decision at a height of 22 metres, for example.[23] Therefore, I find that it is not reasonable to seek to limit the accrued right in this case to the measure of maximum height depicted on the currently endorsed set of plans.
7. A more vexed question may be whether there is an accrued right to construct above a mandatory height where there is an existing permit for a building that is below that height, as was considered in Pantas v Boroondara City Council.[24] In such a case, it was arguably relevant to consider the maximum height approved on the plans for that purpose. That aspect of the reasoning in that case is distinguished on the basis that the approval at present is above the height stipulated in the newly introduced control.
8. In summary, I find that the opportunity to increase the height or number of storeys or to make other changes to the permission that has been granted is preserved in the current proceeding because the proposed amendment sits outside the application of the mandatory controls that would presently apply to a new proposal.
9. In Gembrook Pines, Senior Member Wright held that there was no warrant to impose a strict literal interpretation since section 28(2) of the ILA is a permissive provision. However, he observed that clearly the right could not extend to a 'transformation' of the development.[25] I would agree.
10. The Tribunal in that case nevertheless considered that there were limitations on the scope of the accrued rights that had been conferred, by virtue of section 35(a) of the ILA. That section provides:

In the interpretation of a provision of an Act or subordinate instrument -

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object.

1. Adopting a purposive approach, Senior Member Wright considered that the right retained under the permit should be identified in a planning context which seeks to avoid or control land use conflict. Therefore, the accrued right should be interpreted consistently with this objective. In Gembrook Pines, it was considered that changes that could be allowed under the secondary consent mechanism would satisfy this objective.
2. With respect, I am not persuaded that the tests for secondary consent should be applied by this Tribunal in the current proceeding, which is an application under section 87A of the PE Act.[26] There is no such direction in the provisions pertaining to section 87A. Instead, it confers an extremely broad power. It would also extend to amending the permissions granted by the permit (i.e. the preamble), as has been sought in the current proceeding.

1. There are no legislative requirements for the Tribunal in considering a request to amend a permit under section 87A of the PE Act. The Tribunal may approve such amendments if it is "appropriate to do so". In our opinion, this calls for consideration of the nature and extent of the changes, the physical outcomes of the amendments and an analysis of the proposal in the current policy context.
2. The responsible authority asserted that the amendments as sought in this application should not be approved as they would undermine the significant strategic work undertaken by Council in developing Amendment C137 and related Amendments. Further, it argued that approval of such amendments would be contrary to orderly and proper planning by allowing an increase in height, especially where the issue of height is now controlled via a mandatory provision in the Planning Scheme.
3. We are not persuaded that the proposed changes should be rejected in principle because they would have the potential to 'open the floodgates' for other existing approvals to be increased. The opportunity would only extend to current approvals which exceed the maximum height/setback controls. A decision would need to be made on the planning merits of each amended approval if and when it arises. A favourable decision in this case will not imply that different built form outcomes for another site would be supported.
4. Residents were concerned that the visual bulk impacts of the proposal would increase as a result of incorporating an additional storey, notwithstanding the modest increase in overall building height. They were also concerned that the volume of the building would increase in addition to its height, and that it would appear 'congested' due to additional windows, balconies and the like. This also raised concerns about impacts on their amenity.
5. We agree with Senior Member Wright in Gembrook Pines[27] that the starting point for the Tribunal in a case such as this can be summarised as:

If controls [over the use] have been tightened since the grant of the permit but the amendment seeks a relaxation of the controls it would be a significant factor militating against allowing the amendment.

1. The objectives of the current planning controls are a relevant consideration before us, notwithstanding the absence of mandatory controls applying to the current permit. It is clear that the relevant planning scheme provisions have changed since the original approval to be more prescriptive to fix maximum heights and setbacks within The Junction precinct.
2. At the same time, we regard many of the changes sought by this application as advancing other policy objectives within the scheme, such as maximising housing densities within activity centres and providing increased commercial activation at ground floor. A pertinent question is how this is to be balanced with other objectives, such as those pertaining to built form, amenity and the treatment of residential interfaces, and whether the overall outcome would be acceptable.

1. The subject land is within an area identified by policy as an area of urban intensification. The reference to the maximum number of storeys in the DDO was intended to provide an integrated approach to maximum building heights for the Junction as a whole. The subject land is identified within an area with a consistent maximum height of six storeys (or 20 metres).
2. However, a relevant factor in this case is that the size and dimensions of the property are significantly larger than most properties within this part of the precinct, it occupies a large corner site and has been identified in the control as a strategic redevelopment site. In our opinion, this affords some flexibility in terms of the design response on the subject land, so long as the integrity of built form along the corridor is not compromised and the amended proposal responds suitably to its residential (rear) interface.
3. The 'gains' in providing an additional storey to the development have been achieved by crimping height off various levels of the approved building. This has resulted in a total increase in building height of half a metre. In the context of an approximate 20 metre high building within this location, we consider that the overall increase in height will be imperceptible. It is also relevant that this increase is taken from a point near High Street, which is emerging as a robust medium scale mixed use development corridor.
4. An aspect of amendments will also result in a reduction in height of the lower levels of the development, which are most proximate to residential properties and are in more direct viewlines.
5. We also accept the evidence of Mr Bastone, confirmed by our site inspection, that there is currently no perceptible horizontal alignment of building storeys across this part of High Street. While we recognise that both measures have been used to define height, we regard this element as far less critical compared with overall height in terms of setting expectations for the general scale and building presentation to the street.
6. Whilst we respect the strategic intentions underpinning DDO3, we consider that the changes proposed in this case would not undermine the objectives of that overlay. In our opinion, the amendments proposed would still result in a building with a high level of compliance with the purposes of the overlay and its decision guidelines. With the benefit of the slope, it would also result in a building of comparable perceived height in this part of the High Street corridor as existing buildings, such the Novat building opposite at 142-144 High Street.
7. By reference to the objectives in schedule 3 and clause 22.01 of the planning scheme, the amended proposal would still:
   • Result in high quality urban redevelopment that achieves higher residential densities;
   • Provide activation to High Street (increased somewhat for the reasons discussed below);
   • Introduce commercial and residential development to improve the visual amenity of built form within the Junction;
   • Achieve a balance between intensification, internal and external amenity (as discussed further below);
   • Lead to cumulative high quality design outcomes;
   • Provide a transition in scale along the side street frontage that responds to the character of adjoining sites to the rear;
   • Provide dwelling diversity;
   • Direct the building mass towards High Street and provide articulated built form with an activated public realm; and
   • Subject to our analysis below, ensure that rear building setbacks are sympathetic to topography and minimise their visual dominance.

1. The approved plans detail Level 4 and upwards of the building being partially set off the northern boundary (with the adjacent commercially zoned land), and entirely off the southern boundary adjacent Gertrude Street. The amended plans propose that Level 4 (and 5 and 6) be constructed to the north and southern boundary.
2. Balconies extend into the approximate 2 metre setbacks from the southern boundary provided at Levels 4 and 5 of the endorsed plans.
3. The responsible authority asserted that these encroachments into the previously approved setbacks would increase the sense of bulk and mass. They considered that the approved setbacks from the northern and southern boundaries above the podium level provided for a sense of transition that would not exist in the amended plans.
4. The Tribunal in its previous decision was largely silent on the issue of proposed setbacks from the northern and southern property boundaries.
5. With respect to the northern elevation, we are not persuaded that a zero setback to this boundary would result in excessive bulk or a lack of transition to other uses. The site as this interface adjoins other land zoned for commercial purposes. While this land is currently developed with single storey retail shopfronts, the policy and zoning support now provided by the planning scheme encourages the redevelopment of this and adjacent sites for more intensive commercial and residential development of up to six storeys in scale. Subject to appropriate design treatment of this elevation, we are satisfied that the extension of the building footprint at the upper levels to the northern elevation is an appropriate response to the site context.
6. With respect to the southern elevation, opposite the site in Gertrude Street are buildings of single and double storey form currently being used for office purposes. These buildings are partially built to the boundary with Gertrude Street, and while windows exist within the facades, there is not a great sense of activation along this elevation.
7. This street corner is viewed in the context of the mixed use, higher scale High Street 'spine' of emerging development. It can be reasonably anticipated that the property on the south-west corner of the intersection will be redeveloped with a contemporary mixed use development of up to six storeys in height, albeit extending into Gertrude Street for a shallower depth compared with the subject land.
8. In this context, we find the proposed changes in setback, modulation and fenestration towards these street corners to acceptably provide a more robust presentation. The amendment to the upper floors along the Gertrude Street elevation would retain a high level of visual interest and articulation due to their balconies and changes in materials.

1. The approved plans detail a stepped interface with the residential properties at No. 4 Gertrude Street and No. 31 Garnet Street (i.e. the intervening laneway).
2. The setbacks from this interface broadly comply, and in most cases exceed the setback envelope defined by standard B17 of ResCode (used as a guide). At fourth floor level and above the building was proposed to be set back between 16 and 19 metres from these adjoining residential properties. (That part of the building east of the communal open space is set back at least 18 metres to balconies at first floor level and above).
3. The design also maintains a large communal open space above the car park at ground floor level. This open space is located to the western side of the proposed building. The open space has been sited so that it coincides with the rear garden of No. 4 Gertrude Street. The first, second and third floor levels are also setback between 17 and 19 metres for the extent of this open space.
4. The Tribunal in its original decision found that the design of the western interface of the proposed building, the proposed setbacks and the siting of the communal open space, provided a sufficiently appropriate response to this sensitive interface. The Tribunal noted that the development had been designed to achieve the ResCode standards relating to this issue, even though ResCode did not directly apply to the proposed development
5. With respect to the amended plans, the responsible authority concedes that the revised setbacks generally comply with the ResCode setback requirements and, except for Level 4, setbacks approved by the Tribunal in the Mance Property decision. Mr Bastone's evidence was that subject to the amended plans satisfying ResCode Standard B17 Side and Rear Setbacks Objective, that the altered setbacks will not result in any increased visual bulk to the western interface.
6. We find that the overall building form will continue to transition away for the western boundary as the building height increases, and subject to a condition requiring that the development demonstrate the setbacks as being in accordance with Standard B17, the amended built form would not result in an inappropriate change from the original proposal, notwithstanding the addition/expansion of certain apartments at level 4.
7. We are satisfied that the scale of the amended built form is carefully moderated through varied setbacks, materials and recession of upper levels. The upper floors in particular would continue to have a high level of visual interest and articulation due to their balconies and changes in materials.
8. The amended plans 'push back' the footprint of the building at the central area of the site where the communal open space is proposed. In effect, this will increase the setback of the built form in the area closest to the secluded rear yard of the Passaportis property, which we regard as the most sensitive interface.
9. While we understand the concerns of respondents with respect to the visibility of the building form, we are of the opinion that the visibility of the one additional level sought within a comparable overall building height is a temporary concern, as we think that it is inevitable that its presence will diminish over time as further development occurs in this precinct, including the adjoining site to the south. Also, given the upward view lines from most proximate properties, we are inclined to the opinion that the additional storey within the development envelope will not result in any material difference in presentation of the built form to those properties.
10. In combination, we are satisfied that the amendments sought would continue to provide for a building with a high level of visual interest and which would fit comfortably in this location in line with policy aspirations for a spine of mid rise mixed use developments along this part of High Street which address nearby residential properties via a transition in built form.

1. We are unable to agree with criticisms made about the detailing of the building concerning the alterations to the balcony treatment shifting closer to the High Street frontage.
2. We consider that the building modules created by the exposed slabs and rebates would suitably break up the building façade. This would be emphasised via the further changes recommended in the evidence of Mr Bastone and included in modified permit conditions by agreement.
3. We consider that the façade design would retain many key elements regarded as acceptable by the Tribunal at first instance subject to the reduced height requirement.
4. There is an integrated design of all elevations which is important given the building has a wide frontage to High Street, and by virtue of the low scale development to the west, will continue to be read in the round. The top floors will continue to provide a recessive form to the building.

1. The Tribunal noted that all windows which could potentially overlook within 15 metres of the adjoining residential properties were to be screened in accordance with ResCode techniques (although ResCode would only require screening within 9 metres if it applied). West facing windows or balconies beyond 15 metres of secluded private open space or habitable windows are set back between 16 and 19 metres. The original Tribunal decision highlighted that[28]:

The landscape edge to the communal open space will filter views from these more unscreened balconies and windows. These measures comply with ResCode Standard B22, and again we are of the view that this is an appropriate outcome having regard to the encouragement for higher and more intensive residential development found within the Planning Scheme.

1. The amended plans provide for 1.8 metre high privacy screens to all balconies with a western outlook which would also exceed ResCode Standard B22 Overlooking Objective. Mr Bastone's evidence was that the plans did not provide for screening or glazing of bedroom windows to Units 202 and 203, and it is appropriate that the plans be amended to require that these windows be screened or feature obscure glazing in accordance with Standard B22.
2. Subject to this change, we are satisfied that the amended plans would not result in a significant departure from the previously approved plans with respect to overlooking impacts.
3. To the extent that the Passaportis garden includes an outdoor shower, we observe there is an opportunity for the residents to provide screening to this facility to protect any potential views from the subject land.

1. The original development was designed to satisfy Standard B21 Overshadowing Open Space Objective, even though ResCode did not directly apply to the proposed development.
2. Mr Bastone in his evidence identified a number of discrepancies with respect to the shadow diagrams prepared to demonstrate the impact of the proposed amendments to the building envelope and overall building height. These generally related to the impacts of additional overshadowing to the front garden area of No. 1 Gertrude Street, and to multi-storey buildings located opposite the site at No. 142-144 High Street and No. 154-156 High Street.
3. We are satisfied that any additional overshadowing caused by the proposed increase in building height to No. 1 Gertrude Street is acceptable as the area to be further overshadowed is within the open front setback and therefore is not considered to be secluded private open space as defined by ResCode, for example.
4. We are also satisfied that any overshadowing of the balconies to the new multi-storey developments in High Street will be minor in the context of the site's orientation, and that these dwellings are located within a commercial zoning, and have a comparatively reduced amenity expectation compared with dwellings in a residential context.
5. With respect to the sensitive interfaces with the secluded private open space of the Passaportis and Duong properties, we will require that a condition be included on the amended permit which will require that shadow impacts to these properties not exceed that already provide for under the existing planning permit. This is consistent with the previous Tribunal decision.

1. The responsible authority's traffic engineers supported the proposed reduction in car parking as a result of the increased number of dwellings sought. In part, this was attributable to the location of the site within the activity centre and its access to public transport.
2. This position was not contested by any party. We accept that the increased reduction in parking is acceptable having regard to the considerations in clause 52.06 of the planning scheme and is in line with relevant state and local policies.
3. A number of residents were concerned about an increase in traffic that may be associated with the increased number of apartments proposed via this amendment. In reality, although the number of apartments will increase, the number of on site parking spaces will be reduced by 10. This can be expected to reduce the number of associated vehicle movements consequentially although there may be confined additional visitor demands.
4. We do not contest the fact that residents find the conditions of certain local roads to be sub-standard for their purpose. However, we do not consider that the discrete amendments to this development will result in either a quantitative or qualitative impact on the local road network.

1. The amended application provides for a screened area measuring 21 metres x 6.5 metres set back 11 metres from the southern boundary and 23 metres from the western boundary with a 1.7 metre high screen. The responsible authority conceded that the amended application seeks to provide a greater setback of the plant area from both the western and southern boundaries. However the size of that area has been increased in height and dimensions.
2. We are persuaded by the evidence of Mr Bastone that it is appropriate that the external plant be moved closer to the High Street frontage to reduce any visual impact of the plant when viewed from the Heritage Overlay to the west.
3. This is a relevant consideration in the provisions of the current DDO. Subject to an appropriate condition and viewline diagrams tendered at the hearing, we are satisfied that the visibility of plant and equipment would be minimised from the public realm to an acceptable level.

1. The responsible authority asserts that the above bonnet storage proposed would result in poor amenity for future residents. It says that storage units would not be accessible if the space is occupied by a car, that there is a limited dimension of storage units, and that no details have been provided to satisfy Council that the storage proposed would not impact on the cars parked within those spaces.
2. We regard the proposed provision of storage as acceptable overall. More specifically, we are satisfied that the amendments to the plans improve storage outcomes by moving a number of storage lockers to areas that are not impacted by other dwellings' vehicles.

1. There was no dispute between the parties that the changes to the ground level from home offices to retail space was an acceptable outcome in a commercial zone.
2. While Mr Biggs had concerns that the depth of the proposed commercial frontage would not be sufficient to ensure its commercial viability, we find that its use for retail purposes, rather than home offices as currently approved, will be functional for certain purposes.
3. It will also result in improved street activation and assist in regenerating a currently rather underutilised section of High Street. It is consistent with the DDO3 which seeks commercial spaces on strategic sites to provide a mix of small and middle sized spaces suitable for a variety of commercial uses.
4. We accept the applicant's submission that the proposed internal layout changes to the apartments are an improvement on the current set of endorsed plans. They would also bring the proposal more in line with current amenity expectations such as those in clause 58 of the current planning controls even though the approval benefits from transitional provisions.
5. At the same time, like the residents, we query whether these changes would have been achievable for the most part within the original building envelope.
6. For the record, we are prepared to allow amendments to an existing approved building that would result in residential floor to ceiling heights of 2.6 metres. We recognise that the current expectation via clause 58 is 2.7 metres but consider that the differential is acceptable in the context of amending the current approval where overall building height is sought to be kept to a minimum.

1. Conditions were discussed at the hearing and any changes to the permit conditions contained in Appendix A of this order reflect those discussions. They have been enhanced and refined further on consideration by the Tribunal having regard to the issues addressed above.

1. The approved development currently exceeds the maximum height, number of storeys and rear setbacks that would apply to a new proposal in this area. There is therefore capacity for the Tribunal to approve changes to this approval which benefits from accrued rights.
2. In our opinion, the package of changes sought to be made to the approved development would not undermine current policy objectives and would still result in an acceptable built form outcome having regard to streetscape, interface and amenity issues. They would also align suitably with policies seeking intensification of housing opportunities on strategic sites within designated urban renewal corridors.
3. For the reasons explained above, we regard the grant of amendments sought to the permit as acceptable subject to conditions.

The development of an eight level building (including the level described as the upper basement), the use of the land for dwellings, a reduction in the required car parking and a waiver of the required loading and unloading facility in accordance with the endorsed plans.

1. An experienced architect must be engaged to oversee the design intent and construction quality to ensure that the design and quality and the appearance of the approved building is maintained to the satisfaction of the Responsible authority.
2. Before the development starts, amended plans must be submitted to and approved by the Responsible authority. Three copies of the plans drawn to scale with dimensions must be provided. When approved, the plans will be endorsed and will then form part of the permit. The plans must generally in accordance with the plans by Caydon Property Group (Drawings 04 to 22, VCAT Amendments Submission REV 5), but modified to show:
   • (a) The western elevation building setbacks to comply with Standard B15 at Clause 55.04-1.
   • (b) Shadow diagrams and consequential building modifications to demonstrate that there will be no additional overshadowing of the secluded private open space of No. 4 Gertrude Street and No. 2/31 Garnet Street.
   • (c) All windows within 15 metres of adjoining secluded private open space and habitable room windows of residential properties treated in accordance with Standard B22 at Clause 55.04-6.
   • (d) The rooftop plant area and associated screening moved towards High Street to minimise viewlines from the public realm and residential properties.
   • (e) The section of wall on boundary development at the northern end of the west boundary, which abuts the lane, reduced in height so there is no upstand protruding above the Level 1 roofline.
   • (f) An increase in the size/depth of the vertical recesses to High Street at Levels 4, 5 and 6 to match those previously approved (3 metres in width and 6 metres in depth).
   • (g) All balconies to meet Standard B28 at Clause 55.05-4.
   • (h) All bedrooms to be a minimum of 3 x 3 metres not including wardrobes.
   • (i) All living areas to be a minimum of 3 metres wide.
   • (j) All dwellings to have a minimum floor to ceiling height of 2.6 metres in living areas and bedrooms.
   • (k) A full colours and materials schedule with samples of materials, with external materials on the schedule and plans amended to:
     1. refer to glazed bricks snaps instead of matte brick snaps for C1; and
     2. provide variation to the monotone gold finish to the metal battens of the building edges and balconies facing or turning west, to appear as a more subdued building feature from the adjacent residential area to the west.
3. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
4. Before the development starts:
   • (a) an arboricultural report considering any measures required during construction to protect trees within 5 metres of the land must submitted to and approved by the Responsible authority; and
   • (b) any tree protection measures required by the approved arboricultural report must be implemented

1. Before the development starts, a Landscape Plan must be submitted to and approved by the Responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The Landscape Plan must be generally in accordance with the landscape concept plan prepared by MEMLA P/L and must incorporate:
   • (a) Semi-mature canopy trees (1.5m at time of planting) adjacent to the west boundary shared with 4 Gertrude Street, Preston;
   • (b) Details of overhanging trees on adjoining properties with the genus, species, height and spread of all trees to be specified;
   • (c) A planting schedule of proposed vegetation detailing the botanical name, common name, size at maturity and quantities of all plants;
   • (d) Details of all surfaces including lawns, mulched garden beds and hard paving (such as asphalt, concrete, brick or gravel);
   • (e) Street trees within the nature strip/s adjacent to the property;
   • (f) All constructed items including retaining walls, letter boxes, garbage bin receptacles, outdoor furniture, lighting, clotheslines etc;
   • (g) An outline of the approved building/s including any basement, the location of entry doors, windows, gates and fences. An outline of buildings on adjoining land, including the location of windows and doors which face the subject site also to be shown;
   • (h) The location of both existing and proposed overhead and underground services. Conflicts of such services with the existing and proposed planting must be avoided;
   • (i) Clear graphics identifying trees (deciduous and evergreen), shrubs, groundcovers and climbers; and
   • (j) A scale, North Point and appropriate legend.

The species of all proposed plants selected must be to the satisfaction of the Responsible authority.

1. Before the development starts, an Environmentally Sustainable Development Management Plan (ESD Management Plan) prepared by a suitably qualified professional must be submitted to and approved by the Responsible authority.
   • (a) The ESD Management Plan must address:
     • (i) Energy Management;
     • (ii) Water Conservation and Re-use; and
     • (iii) Demolition and Construction Waste Management.
   • (b) Where appropriate, the ESD Management Plan should:
     • (i) Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards;
     • (ii) Document the means by which the appropriate target or performance will be achieved;
     • (iii) Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring; and
     • (iv) Demonstrate that the design elements, technologies and operational practices that comprise the ESD Management Plan can be maintained over time.

A schedule for implementing and monitoring the ESD Management Plan must be included. The approved ESD Management Plan must be implemented to the satisfaction of the Responsible authority.

1. Before development starts, an Acoustic Assessment of the development to the satisfaction of the Responsible authority must be submitted to the Responsible authority. The assessment must be prepared by a suitably qualified acoustic engineer and must detail recommended treatments of the development and/or the adoption of appropriate measures to ensure that noise emissions from the development (including the operation of plant) do not impact adversely on the amenity of neighbouring residential properties. This must include measures to minimise noise associated with vehicle access and the car park upon the adjoining dwellings, including:
   • (a) the height, construction and cladding of the first floor wall to the north and west of car space 47, car space 48 and their associated access aisle to minimise escaping from the car park and / or absorb noise from the car park;
   • (b) appropriate paving materials for relevant car spaces, access aisles and access ramps to minimise skidding / noise of vehicle movement;
   • (c) any other relevant measures to limit / absorb noise car noise (e.g. ground floor car park roofing materials to limit noise reflection, speed control measures etc);
   • (d) a low noise type of basement roller door; and
   • (e) the type of ventilation louvers.

The development must be constructed in accordance with the recommendations of the approved Acoustic Assessment to the satisfaction of the Responsible authority.

1. Before the development starts, a Construction Management Plan (CMP) must be submitted to and approved in writing by the Responsible authority. The CMP must include:
   • (a) hours of demolition and hours of construction;
   • (b) traffic movement of all workers' vehicles and construction vehicles;
   • (c) works timetable;
   • (d) any impacts upon adjacent roads, footpaths and the carriageway easement. Provision must be made for adequate movement and circulation of vehicles and pedestrians adjacent to the land during the construction phase;
   • (e) access routes for construction vehicles;
   • (f) proposed parking and standing locations for construction vehicles and construction workers vehicles;
   • (g) temporary fencing works;
   • (h) number of workers expected to work on the site at any time;
   • (i) methods for limiting escape of dust and litter from the land;
   • (j) a communication strategy for advising the Responsible authority and residents of key stages/events (including their timing and duration) in the construction program of the development; and
   • (k) a liaison officer for contact by residents and the Responsible authority in the event of relevant queries or problems experienced.

The development must be undertaken in accordance with the approved CMP to the satisfaction of the Responsible authority.

1. Before the construction or carrying out of buildings and works in association with the use commences, either:
   • (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
   • (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the use.
2. Before the development starts, a revised Waste Management Plan (WMP) to the satisfaction of the Responsible authority must be submitted to and approved by the Responsible authority. The WMP must be generally in accordance with the plan which accompanied the application.

The WMP must demonstrate the means by which garbage and recyclables will be stored on the site. Collection must be undertaken by a private contractor with bins collected by the contractor from the site, with no bins placed along High Street, Gertrude Street or the Right of Way for collection. Garbage and recyclables storage and collection must be undertaken in accordance with the approved WMP to the satisfaction of the Responsible authority.

1. Prior to the issue of a building permit for any building or any works authorised by this permit, a development levy must be paid to Darebin City Council. The amount of the development levy for each charge unit must be calculated in accordance with Schedule 1 to the Development Contribution Plan Overlay.
2. Floor levels shown on the endorsed plans must be confirmed. The confirmation of the lowest floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2006. This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible authority no later than 7 days from the date of the sub-floor inspection. The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible authority.
3. If within six months of development commencing the responsible authority notifies the owner of the land that traffic management measures are required in the Gertrude Street road reserve to reinforce the intention that all vehicles leaving the car park on the land must turn left into Gertrude Street the owner must implement such measures to the satisfaction of the responsible authority. The measures to be implemented must be to the reasonable satisfaction of the responsible authority. The measures must be implemented prior to the occupation of the building. The measures must be implemented at the owner's cost.
4. Before the use starts, a sustainable transport display must be provided in a visually prominent location near both front entrances of the apartment entry foyer and must include public transport route maps and timetables and maps of walking and cycling routes to and from the site. The display must be regularly monitored and kept up to date to the satisfaction of the Responsible authority.
5. Prior to the occupation of the permitted building, a car parking allocation plan must be submitted to and approved by the Responsible authority. The plan must set out the allocation of onsite car parking to the occupants of and if appropriate visitors to the building.

The plan must not be revised without the consent of the Responsible authority. The car parking must be used in accordance with the plan to the satisfaction of the Responsible authority.

1. Before the dwellings are occupied, a report from the author of the ESD Management Plan approved under this permit or similarly qualified person or company, must be submitted to the Responsible authority. The report must be to the satisfaction of the Responsible authority and must confirm that all measures specified in the ESD Management Plan have been implemented in accordance with its requirements.
2. In the event that a statement is issued in accordance with Part IXD of the Environment Protection Act 1970, before the development is occupied all conditions of the Statement of Environmental Audit must be complied with to the satisfaction of the Responsible authority. Written confirmation of compliance with the conditions of the Statement of Environmental Audit must be provided by a suitably qualified environmental professional.
3. If the conditions of the Statement of Environmental Audit require ongoing maintenance or monitoring, before the development is occupied the owner of the land must enter into an Agreement with the Responsible authority under Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible authority to the effect that:
   • (a) without the written consent of the Responsible authority all conditions of the Statement of Environmental Audit issued in respect of the land will be complied with to the satisfaction of the Responsible authority; and
   • (b) written confirmation of compliance with the conditions of the Statement of Environmental Audit must be provided by a suitably qualified environmental professional.

A memorandum of the Agreement must be entered on the Title to the common property and the owner must pay the costs of the preparation and execution of the Agreement and entry of the memorandum on Title.

1. The layout of the uses as shown on the endorsed plans must not be altered without the prior written consent of the Responsible authority.
2. This Permit will expire if either:
   • (a) The development does not start within three (3) years from the date of this Permit; or
   • (b) The development is not completed and the use has not started within five (5) years of the date of this Permit.

The Responsible authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.

1. All external lighting must be designed, baffled and/or located to ensure that no unreasonable loss of amenity is caused to adjoining and nearby land to the satisfaction of the Responsible authority.
2. Boundary walls must be cleaned and finished to the satisfaction of the Responsible authority.
3. The land must be drained to the satisfaction of the Responsible authority.
4. With the exception of guttering, rainheads and downpipes; all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise ensure views are limited to the satisfaction of the Responsible authority.
5. No plant, equipment, services or architectural features other than those shown on the endorsed plans or located within the roof top plant enclosure shown on the endorsed plans, are permitted above the roof level of the buildings without the prior written consent of the Responsible authority.
6. Provision must be made on the land for letter boxes and receptacles for newspapers to the satisfaction of the Responsible authority.
7. Disabled access to the shop must be provided to the satisfaction of the Responsible Authority and all work carried out to provide disabled access must be constructed in accordance with the relevant Australian Standards for Access and Mobility.
8. Not more than one (1) communal television antennae may be erected on the site. Individual antennae for individual dwellings/tenancies must not be erected.
9. Before the dwellings are occupied, vehicular crossing/s must be constructed to align with approved driveways to the satisfaction of the Responsible authority. All redundant crossing/s or crossing opening/s must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible authority.

1. All privacy screening measures shown on the endorsed plans along the building must be fixed and permanent in line with the requirements of clause 55.04-6 of the Darebin Planning Scheme to the satisfaction of the Responsible authority.

1. Before the commencement of works, or other time agreed in writing with the Director of Public Transport, the bus stop and shelter in High Street including all associated infrastructure, must be relocated at a cost born by the permit holder to the satisfaction of the Director of Public Transport and deemed compliant with the Disability Discrimination Act - Disability Standards for Accessible Public Transport 2002.
2. The permit holder must take all reasonable steps to ensure that disruption to bus operation along High Street is kept to a minimum during the construction of the development. Foreseen disruptions to bus operations and mitigation measures must be communicated to the Director of Public Transport fourteen days (14) prior.
3. Before the use of the land commences, a Green Travel Plan must be prepared to the satisfaction of the Responsible authority following consultation with the Department of Transport (Public Transport Division). The Plan must be prepared by a suitably qualified person and must encourage the use of non-private vehicle transport modes by the occupiers of the land. The Plan must include the following:
   • (a) A description of the location in the context of alternate modes of transport and objectives for the Green Travel Plan;
   • (b) Outline Green Travel Plan measures for the development including, but not limited to:
     • (i) Household welcome packs - tram, train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers upon a purchaser's occupation of an apartment;
     • (ii) Include a minimum of 10 by 2 hour Metcard (zone one / two) within the household welcome pack or a Myki pass (of equivalent value) and registration information;
     • (iii) Bicycle parking and facilities available on the land
     • (iv) Pedestrian routes to key destinations.
   • (c) Monitoring and review.
4. The Green Travel Plan must not be amended without written consent of the Responsible authority following consultation with the Department of Transport (Public Transport Division).

1. Once approved the Green Travel Plan must form part of the planning permit and any ongoing Management Plan for the land to ensure the Green Travel Plan continues to be implemented by residents / owners to the satisfaction of the Responsible authority.

[1] Protruding more than 1.2 metres above natural ground level in parts.

[2] Now as-of-right under the current zone controls.

[3] At the time the original permit was granted, the Heritage Overlay appeared to apply to the land. It has since been removed.

[4] Some of these policies or specific provisions are not directly applicable to the proposal because transitional provisions apply. In arriving at this decision, we have had regard to the submissions made by the parties with leave of the Tribunal following the hearing as to the relevance of Amendment VC139 and the introduction of the Apartment Design Guidelines for Victoria 2017, in addition to changes made to state planning policy in clause 15 of the scheme.

[5] 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.

[6] Associated changes are sought to the preamble of the permit.

1. [7] Prior to the hearing, amended plans were circulated in accordance with the VCAT Practice Note 9, PNPE9. The changes depicted in these plans included; alterations to the building envelope to more closely align with the original approved building outline, internal layout changes to several apartments; alterations to balconies, building height reduced by 600mm, to an overall roof height of 84.10 metres. The screen to the roof plant area to have an overall height of 85.90 metres and to the staircase 86.40 metres

[8] Mance Properties Pty Ltd v Darebin CC [2012] VCAT 564, a decision of Liston, SM and Bennett, M. The permit allows 'the demolition of existing buildings [which has been carried out], the development of a seven level building (including the level described as basement on the substituted plans), the use of the land for dwellings (including five home offices) and shop, a reduction in the required car parking and a waiver of the required loading and unloading facility in accordance with the endorsed plans.

[10] Measured at the centre of the front footpath.

[11] This is a question of mixed fact and law and has been determined by Member Cook who is a qualified legal practitioner in line with the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

[12] The history of this provision and the relevant discussion in the report of the Panel was outlined by the responsible authority at the hearing.

[13] At part 5.9, p66 of the Report of the Independent Panel dated 31 July 2014 (revision A. 12 March 2015).

[14] By reference to cases such as Popular Pastimes Pty Ltd v Melbourne CC [2008] VCAT 1184.

[15] A distinction may be made in so far as accrued rights may be generated, but this is a different issue to seeking to distinguish between the grant or variation of a permit for the purposes of the provision itself.

[16] This ties in with the 'head' clause 43.02 which provides that a permit "can be granted" for a use or development that is not in accordance with a requirement, unless the schedule provides otherwise. It provides otherwise in this instance.

[17] This approach is also supported by section 35 of the Interpretation of Legislation Act 1984 which encourages a construction that would promote the object of the subordinate legislation to be preferred.

[18] Including Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466 as applied in Ocean Beaumaris Pty Ltd v Bayside CC [2014] VCAT 1606. This represented an expansion of the legal reasoning applied in Fosters Group Ltd v Mornington Peninsula SC (Red Dot) [2010] VCAT 104 concerning permitted uses of land to include development.

[20] To some extent, this is on account of the partial projection above ground amounting to an additional storey under planning scheme definitions

[21] At best, DDOs applying to the core of The Junction area which did not include the subject land sought preferred maximum heights of eight storeys.

[22] There is also a proposed increase in the maximum height of the external plant and equipment by 1.9 metres at rooftop level, which is specifically excluded from the calculation of maximum building height in the schedule to the DDO.

[23] It would also be impractical to 'fix' the maximum height of the building by the set of plans as at the date of the new provisions. For example, it would suggest that there could never have been any amendment increasing the building height however required. For example, if flooding considerations had not been taken into account, or if an error had been made in respect of minimum floor to ceiling levels

[24] Application No. P298/2015, unreported.

[25] As this concept is addressed in cases such as Addicoat v Fox (No. 2) 1979 VR 547.

[26] The jurisdiction of the Tribunal in the current proceeding is to be distinguished from the section 80 review of permit conditions that was considered in Gembrook Pines

[27] [29]. Similar comments were made in Callea at [53].