1. The decision of the Responsible Authority is set aside.
2. In permit application a permit is granted and directed to be issued for the land at 247-249 Gore Street Fitzroy in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • The construction of two or more dwellings on a lot.
   • Demolition of buildings, construction of a building and construction and carrying out of works
   • Reduction in the provision of car parking from the rate specified in Clause 52.06.

Mr Crawford called expert evidence from Mr S McGurn, town planner, Mr B Raworth, heritage architect, and Mr T Hardingham, traffic engineer.

A photomontage report prepared by Mr R Holehouse was circulated prior to the hearing and tabled at the hearing, but Mr Holehouse was not called to give evidence.

An acoustic engineering report prepared by Marshall Day was served on the Tribunal and the parties, in accordance with the Tribunal's directions dated 17 August 2012.

Mr G Holwell, town planner, appeared on his own behalf and on behalf of a number of objectors.

Mr P Beekman, and Mr A Ryan appeared on their own behalf.

Demolition of two dwellings and the construction of a four storey building above a basement. Twelve dwellings are proposed.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse to grant a permit.

Clause 43.01: Heritage Overlay (HO - 334 South Fitzroy).

Clause 32.01-4: A permit is required to construct two or more dwellings on a lot.

Clause 43.01-1: A permit is required to demolish or remove a building, construct a building or construct or carry out works.

Clause 52.06: A permit is required to reduce the car parking from the rate specified in the table to Clause 52.06[1].

The site is located on the south west corner of Gore Street and St David Street, Fitzroy. The site comprises two lots which have a combined frontage of 20.12 m to Gore Street, and 19.3 m to St David Street. A single storey brick dwelling occupies each of the lots.

The Smith Street major activity centre is about 110 m to the east, and Brunswick Street is about 400 m to the west.

Three Victorian, double storey terrace houses abut the review site to the west (St David Street), including a dwelling at no.88 that is constructed to the common boundary with the review site. To the south, a short lane way abuts the review site. The lane terminates near the south west corner of the site. On the south side of the lane, there is a double storey terrace. The Woolworths car park is located to the east, on the opposite side of Gore Street. The car park is surrounded by a brick wall that was retained s part of the car park construction. A mix of Edwardian and Victorian dwellings and industrial buildings that have been converted to residential use, occupy land to the north and west.

Richmond Icon Pty Ltd v Yarra CC (includes Summary) (Red Dot) [2011] VCAT 2175

Cremorne Corporation Pty Ltd v Yarra CC [2008] VCAT 1202,

The Crema Group Pty Ltd & Ors v Yarra CC [2011] VCAT 199

Richmond Icon Pty Ltd v Yarra CC [2013] VCAT 298.

1. This is an application to review the decision of the Responsible Authority to refuse permission for the demolition of two buildings, and the construction of a four storey building at 247-249 Gore Street Fitzroy. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:
   1. The proposed development is contrary to the objectives and guidelines detailed in the Local Planning Policy at Clause 22.02 (Development guidelines for site subject to the heritage overlay) of the Yarra Planning Scheme including the following:
      1. The development adversely impacts on and reduces to an unacceptable degree the significant view lines to, and vistas of, the St Marks church.
      2. The development is contrary to the stated objective to preserve the scale and pattern of streetscapes in heritage places.

The proposed development is contrary to the objectives and guidelines detailed in the Local Planning Policy at Clause 22.03 (Landmarks and tall structures) including that the proposed development reduces the prominence of the spire of St Mark's, identified as a landmark feature in the above policy, to an unacceptable degree when viewed from the surrounding public vantage points.

1. The access to, and arrangements for, the proposed on site car parking are unacceptable having regard to the proximity of the same to the adjoining dwellings.
2. The scale of development is not in keeping with the character of the area and the proposed built form is inconsistent with the past decisions and outcomes sought and achieved by Council on development applications in the St Marks area and especially those that impact on the view lines from public areas of the Saint Mark's church.
3. The council's decision was made notwithstanding the council's officers recommending approval of the application.
4. The permit applicant has applied to the Tribunal to review the council's decision.
5. Statements of grounds have been submitted by a number of objectors.
6. At the conclusion of the hearing, the Tribunal by Order dated 17 August 2013 directed that the applicant serve on the Tribunal, the responsible authority and all other parties, a report prepared by a suitably qualified acoustic consultant. The report was required to assess the acoustic impacts of the car lift associated with the proposed development of the land at 247-249 Gore Street Fitzroy, on the dwelling abutting the review site (No.88 St David Street Fitzroy).
7. All parties were provided with the opportunity to make written submissions on the report.
8. The report was subsequently received, and a submission in response was received from Mr Ryan, the owner and occupier of the land at 88 St David Street, Fitzroy.
9. The issues in this case can be categorised as follows:

1. Does the proposal have an adverse affect on the significance of the heritage place? 2. Is the proposal acceptable in terms of its impact on the landmark structure being the Spire of St Marks Church, George Street, Fitzroy?

1. Does the proposal have unacceptable amenity impacts?

1. Are the car parking/vehicular access arrangements acceptable?
2. Having considered the submissions and the evidence, and having inspected the site and the neighbourhood, I have concluded that a permit should issue for this proposal, subject to a number of conditions.
3. My reasons are set out below.

Does the proposal have an adverse affect on the significance of the heritage place?

1. The review site exhibits a variety of attributes that make it a suitable candidate for some form of development that contributes to the planning scheme's settlement and housing policies.
2. The site is zoned Residential 1. It is located within an area that enjoys excellent access to a wide range of services and facilities. The site is about 120 m from the Smith Street Major Activity Centre (MAC), and is proximate to the Brunswick MAC. Public transport is available in the area. There are tram routes in Smith Street and Brunswick Street, and Collingwood and Victoria Park Railway Stations are about 1.5km away. The policy framework of the planning scheme provides encouragement for sites exhibiting these characteristics to be developed in accordance with settlement and housing objectives[2].
3. Developments however are also required to respect the existing or preferred character of neighbourhoods, and existing residents must also be protected from unreasonable amenity impacts[3].
4. A Heritage Overlay also affects the review site. The SPPF and LPPF contain a range of policies and provisions aimed at protecting the significance of heritage places, and at protecting landmarks and tall structures. A development of the site must also be acceptable having regard to these provisions.
5. The existing buildings on the site comprise a pair of semi detached, cream brick dwellings dating from the 1960's. They are graded non-contributory, they have little or no architectural merit and date from a period that is outside the key periods of development identified in the statement of significance for the heritage place. They do not contribute to the significance of the heritage place, and their demolition is therefore acceptable.
6. The council and the objectors oppose the form, style and scale of the proposed replacement building.
7. In broad terms, the council and the objectors emphasise what they describe as the intactness of this heritage place, reflected in the high number of contributory buildings. Emphasis is placed in their submissions on the heritage buildings immediately abutting the review site. They submit that the proposed building adopts an undesirably aggressive presence, especially in its hard-edged presentation to the corner of Gore Street and St David Street.
8. The council relies on the advice provided to it by its heritage adviser[4]. The adviser's report states in part:

'The part of Gore St. between Moor and Greeve Streets is primarily a residential street on the west side, comprising single and double storey Victorian dwellings of high heritage value and with an Edwardian dwelling and a former industrial building which are Contributory. There are two sites which are non-Contributory: the subject site and a c. 1960s double storey block of flats at No.269. The east side of Gore St between Moor and St. David St. northwards all the buildings are residential or non-residential Victorian buildings (halls). There are few non-contributory buildings, generally sites, and these include the rear of the Woolworths supermarket opposite, the west elevation of which was designed to blend in with the streetscape,

The subject site is in proximity to a cluster of individually significant buildings, particularly to the south and west and also the north-east.

While the buildings in this part of the street may differ in terms of scale and style and less so in terms of function and period, this is typical of the historical development of the area which has high heritage value. Overall the street is not eclectic, meaning mixed and of low heritage value, nor is there any "incongruous group" as claimed in the Raworth report.

1. The Statement of Significance for the heritage Place (HO334) states in part:

'An extraordinary amount of comparatively homogenous nineteenth century building stock has survived in Fitzroy, as compared to either the City of Melbourne or neighbouring suburbs such as Collingwood or Richmond. Some 22% of buildings in the Heritage Overlay are individually significant compared with, for example, other large residential areas such as 7% for North Fitzroy or 9% for North Carlton, Some 18% of South Fitzroy buildings were erected by the 1860s as a demonstration of its early origins.

1. The council submits that in this context, the proposal responds poorly to the significance of the heritage place primarily because:
   • There is a lack of setbacks to ground, first and second floor levels to Gore Street, and a lack of vertical articulation to St David Street.
   • There is a parapet/balustrade on the third floor, creating additional height to the street.
   • There is an excess of sheer, blank walls to the street.
   • The building incorporates incongruous window configurations and proportions.
2. A major point of disagreement between the council (including its heritage adviser) and the objectors on one hand, and Mr Raworth who gave evidence for the permit applicant, is the degree to which the significance of the heritage place has been diminished by development outside the key periods of development identified in the statement of significance. Mr Raworth referred to the dwellings on the review site, the car park directly opposite the review site, and a number of Victorian buildings that have been subject to unsympathetic alterations and additions. It is Mr Raworth's evidence that these characteristics are relevant in assessing the proposal's affect on the significance of the place. The council and the objectors submit that the developments referred to by Mr Raworth have no significant affect on the integrity and intactness of the heritage place.
3. It is inevitable that a locality such as this will have been the subject of a layering of development patterns over time, and it is neither unusual nor unexpected that unsympathetic buildings can be identified within the confines of the heritage place. Buildings of this type do exist in this locality, but their affect on the significance of the heritage place is relatively limited. The shopping centre car park opposite the review site for example, has retained a high wall in its presentation to Gore Street, behind which the car park is located. While the non contributory buildings will inevitably form part of the context to be considered when assessing a proposal's affect on the heritage place, in this case my assessment of the proposal has proceeded on the basis that the review site sits within a heritage place not significantly influenced by the existence of those unsympathetic or non-contributory buildings.
4. Notwithstanding my findings on this point, I have concluded that this proposal represents an acceptable response to the significance of the heritage place for the following reasons:
   • The building adopts a contemporary character that in this heritage place is appropriate. Mr Raworth described the contemporary form as "restrained" and I agree with that description.
   • The building incorporates a reasonable level of articulation in the form of recessed and projecting elements that break up the mass of the building.
   • Where the building extends along its southern and western boundaries along Gore Street and St David Street, it adopts the setbacks of the adjacent buildings in those streets. The building also interprets the Victorian terrace houses neighbouring the site through the use of both horizontal and vertical elements, and by aligning the balconies and the overall height with that of its neighbours. This aspect of the proposal responds specifically to the local policy at Clause 22.02-5.7.2 relating to corner sites that encourages new buildings to respect the built form and character of the heritage place and adjoining or adjacent contributory elements to the heritage place.
   • The building has a contemporary three storey height with a recessed fourth storey. The first three storeys are equivalent in height to that of the abutting double storey Victorian terraces. The fourth storey is recessed and, while visible from surrounding streets, it does not assume a dominating visual presence, and is therefore acceptable.
   • The corner element is more prominent than the building's treatments to its neighbours, but this is an acceptable design response in this heritage place, primarily because it is a common treatment in Gore Street and the heritage place generally, where sheer walls and hard edges to streets and corners are common.
5. Mr Holwell submits that because the proposal involves the consolidation or building over the two lots, the consequential built form fails to reflect the "fine grain" subdivision pattern of the area. While the subdivision pattern of the heritage place can be accurately described as fine grained, it is not uniformly so. There are examples of larger lots, some of which may be part of the original subdivision of the area, while others may have been consolidated over time. In any event, the consolidation of these two lots does not constitute a departure from the place's subdivision pattern to a degree that is sufficient to persuade me that it would adversely affect the significance of the heritage place. My findings about the acceptability of the built form, in particular the relationship of the built form to its immediate neighbours, is relevant to my conclusion on the issue of site consolidation.
6. I am satisfied that the proposed building is acceptable having regard to the decision guidelines of the heritage overlay, and the applicable heritage policies in the planning scheme.

Is the proposal acceptable in terms of its impact on the landmark structure being the Spire of St Marks Church, George Street, Fitzroy?

1. The council and the objectors submit that the proposal will, from several vantage points, obscure views of the spire of St Marks, which is located behind the review site to the south west. The spire is currently observed widely and from a number of vantage points throughout the locality, including from within Gore Street and St David Street, over the rooftops of the single storey buildings occupying the site.
2. With respect to the loss of the views of the St Marks spire, the objectors submit that the single storey height of the two dwellings on the review site reflects a continuation of the original development patterns on the site that were intended to create and protect the views of the spire from surrounding areas. Some objectors submit that the combination of the heritage overlay, and the local policy at Clause 22.03 effectively prevents development of the review site in a manner that further interrupts views of the spire. Mr Beekman submits that views of the spire from within private properties are also protected by the planning scheme. Mr Holwell submits that, in the alternative, development of the site needs to be limited to two storeys. While a two storey development on the site will obscure existing views of the church roof, Mr Holwell submits that the spire will continue to be visible and that it is the spire, rather than the roof, that the policy at Clause 22.03 seeks to protect.
3. The council and the objectors submit that the views that will be affected because of the proposed development are important views. Gore Street and St David Street are identified by Mr Holwell as important pedestrian links. In their submission, the proposed development will contribute to a loss of a sense of place experienced by residents and visitors to the area to which the views of the spire make a significant contribution. The views of the spire through the review site constitute in their submission, a rare framed view of the spire that has existed for over a century. They submit that the community benefits derived from the provision of additional housing on the review site, need to be considered in the context of the loss experienced by the community as a consequence of the obstructed views of the spire, and the sense of place that are contributed to by those views.
4. Clause 22.03 of the LPPF applies to all development within the municipality. The policy identifies the importance of landmarks and tall structures to the built form of the City, and seeks to retain important landmarks and icons that contribute to the identity of the City and to maintain view lines to key landmark sites. It is policy to:
   • Maintain the prominence of Yarra's valued landmark signs.
   • Protect views to the silhouette and profile of Yarra's valued landmarks to ensure they remain as the principal built form reference.
   • Ensure the profile and silhouette of new tall structures adds to the interest of Yarra's urban form and skyline.
5. The Spire of St Marks Church, George Street, Fitzroy is identified in the policy as one of eight landmarks around which new buildings should be designed to ensure the landmarks remain as the principal built reference. The policy identifies a number of other landmarks and provides more specific direction as to which views of the landmark are to be protected[5].
6. The policy at Clause 22.03 has been the subject of a number of recent Tribunal decisions. Mr Crawford referred me in particular to the decision of the Tribunal in Richmond Icon[6]. That case involved the consideration of an application to develop the Dimmeys store in Swan Street Richmond. The Ball Tower of Dimmeys, is one of the eight landmarks referenced in Clause 22.03. The Tribunal in that case made a number of pertinent findings about the interpretation and application of Clause 22.03. Relevantly the Tribunal found that:
   • The policy does not require there to be no visible structure near the landmark (in that case the Dimmey's ball tower), but rather that the landmark tower remain "the principal built reference"[7].
   • The policy is not intended to preserve and protect every possible view of the landmark from public spaces[8].
   • Key or important views need to be carefully dealt with, not every incidental view[9].
   • Not all views of the landmark are of equal worth[10].
7. The Tribunal's decision in the Dimmeys case, adopted the approach applied by the Tribunal in earlier cases that considered similar issues[11] and has been subsequently followed by other divisions of the Tribunal[12].
8. I agree with the approach adopted by the Tribunal in Richmond Icon and the earlier cases. The application of those principles will of course vary from site to site, and each case needs to be determined having regard to the individual circumstances of the site.
9. The proposed development will effectively obscure views of the spire from within Gore Street and St David Street, at and near the intersection of those streets, and when approaching the site from the north east in Gore Street and from the east in St David Street. Mr Holwell provided a detailed analysis of the impact of the proposal on the existing views of the spire, and I generally agree with that analysis. I have concluded therefore, based on that information and my own inspection, that the impact of the proposed development on views of the spire will be relatively localised. Notwithstanding the localised impacts, the spire will continue to be viewed from vantage points throughout the locality. Existing views of the spire will be unaffected by this proposal when viewed from vantage points extending in a wide arch from the south east through to the north west. The issue I therefore need to decide is whether that localised impact is acceptable having regard to the applicable policies.
10. In arriving at my decision on this issue, a judgement that seeks to balance all competing policies needs to be exercised. This is not a case in which a refusal of the application inevitably follows from the fact that a view of the spire will be obstructed by the proposal. My judgement is informed by my earlier findings that the development of the review site for some form of medium density housing is supported by the planning scheme's policy framework, and that the form, scale and style of the development is acceptable having regard to the relevant heritage considerations. The fact that the existing buildings on the site are non contributory, and can be demolished without any adverse affect on the significance of the heritage place, is also relevant.
11. Critically however, notwithstanding my findings on these other relevant matters, I must still be satisfied that the proposal is acceptable having regard to the outcomes to be achieved by the policy at Clause 22.03. In this respect, an assessment of the quality of the view of the spire to be lost or affected, is required. My assessment is that while the view to be lost is more than an incidental or glimpsed view, it is one of several available views and many of those views are more important than this view. For example, I contrast the view of the spire from Gore Street/St David Street, to that of the more expansive views obtained from Moor Street and George Street, from which the spire is appreciated in its context as part of the St Marks Church, to a much greater degree than the view obtained over the review site.
12. My conclusion about the impact of the proposal on the spire, and its acceptability under the local policy is also influenced by the following:
    • Clause 22.03 of the planning scheme does not protect views of landmarks obtained from within private property. The impact of a development on the views of landmark structures can only be assessed under Clause 22.03 from within the public domain.
    • I am not persuaded by the submissions that existing views of the spire from Gore Street and St David Street have influenced past development on the review site, with the intent of protecting that view. I agree with Mr McGurn and Mr Raworth that there is no compelling evidence that this view is anything other than opportunistic. The fact that the view is opportunistic, does not diminish the significance or relevance of the view. The proposal must still be assessed against the outcomes sought by the local policy, but in undertaking that assessment, I am unable to conclude that it is a view that exists because of deliberate actions to create or preserve that view.
    • The view of the spire that will be lost is one of several available views and many of those views are more important than this view
    • I disagree with Mr Beekman's submission that the view over the review site is in effect, the only view that the policy at Clause 22.03 is intended to protect. The policy clearly states that it applies to all development. The policy also distinguishes between those landmarks that have specific views that need to be considered, and those landmarks such as St Marks, which are subject to more general consideration. The policy operates in such a way that development that may impact on the prominence of identified landmarks, must be assessed. I reiterate my earlier finding that the view of the spire that will be lost is one of several available views, many of which are more important than this view.
13. Consequently, I have concluded that the proposal is acceptable in terms of meeting the objective of Clause 22.03 to maintain the prominence of Yarra's valued landmarks.

Does the proposal have unacceptable amenity impacts?

1. The review site has a direct abuttal to a dwelling to the west at no.88 St David Street. This dwelling is a double storey Victorian terrace, constructed along the common boundary with the review site to a height of about 10.3 m. The boundary wall extends about half the depth of the site, and beyond that there is an extension (7.5 m in height) with a rear first floor deck, and a car port accessed from the lane that runs along the review site's southern boundary. There are habitable room windows located in the boundary wall of the extension.
2. The proposed building aligns with the neighbour's boundary wall at the front of the site. Beyond that wall the proposal is setback from the common boundary by 1.4 m at ground, first and second floor, and the third floor is setback 3.92 m. The on boundary habitable room windows in the neighbouring dwelling are located adjacent to these setbacks. These windows will experience a loss of daylight but I agree with Mr McGurn that because of the window's location in the boundary wall, it is not reasonable to expect that these windows will never be affected by development on the review site. The proposed setbacks from those windows achieves an outcome that is on balance, an acceptable one.
3. While the proposal will introduce a significant level of visual bulk when viewed from the west, in this inner urban context where on boundary construction, often to significant heights and often located adjacent to courtyards and open spaces, is a common feature, the visual bulk impacts are acceptable. Overlooking from the proposal does have the potential to contribute to a loss of amenity because these are located less than 9 m from secluded private open space and habitable room windows. This has been addressed by the window locations and where necessary the use of screening or 1.7 m sill heights.
4. The shadow diagram submitted with the application demonstrate that additional shadows will be cast, but these are primarily limited to early mornings, and that after about 9.00 am the additional shadow affect is small. Mr McGurn described the affect as "minimal" and I agree with that.
5. The provision of car parking for the proposal involves the use of an existing crossover in St David Street to provide access to a basement car park using a car lift, adjacent to the side boundary wall of no. 88 St David Street. This aspect of the proposal raises amenity issues in addition to car parking and traffic management issues. I will address those issues subsequently in this decision.
6. Having regard to the nature of the interface with the dwelling to the west, I am satisfied that the amenity impacts of the proposal are acceptable in this neighbourhood context.
7. To the south of the review site, there is a lane that ranges in width from 2.38 m where it intersects with Gore Street, and 2.8 m at the western end. On the south side of the lane there is a two storey dwelling (245 Gore Street). That dwelling has a blank wall presenting to the land for about half the depth of the site, with a first floor deck, private open space and car space behind a roller door.
8. There is a habitable room window facing the review site at first floor level that is not shown on the applicant's site context plan.
9. The proposal's design response to that interface aligns the southern, on boundary construction with the on boundary construction of the neighbouring dwelling. The proposal then pulls back from the interface with setbacks of 1.8 m at ground, first and second floor, and 2.32 m at the third floor. The third floor roof form also rakes away from the south. The third floor has also been recessed from the east and west, and presents as a relatively small component in its interface to the south. The terrace of the third floor dwelling is located toward the Gore Street and St David Street intersection. These aspects of the proposal, combined with the additional separation provided by the width of the lane, are sufficient to ensure that the visual bulk impacts of the proposal are acceptable in this neighbourhood context.
10. The potential for overlooking has been addressed by the screening of terraces, and where appropriate windows, and the location of the third floor terrace.
11. The dwelling to the south will be shadow affected but not to an unacceptable degree. The shadow diagrams demonstrate that the greatest impact will be over the rear open space in the early morning, but after that time, the additional shadow is not significant.
12. I am satisfied therefore that the amenity impacts of the proposal are acceptable.
13. I am also satisfied that the proposal will provide an acceptable level of amenity for future occupants of the building.

Are the car parking/vehicular access arrangements acceptable?

1. It is proposed to provide 14 parking spaces in a triple level car storage system (stackers) located in the basement. Access to the basement is proposed via the existing crossover in St David Street (which will be widened) and using a car lift system.
2. The quantum of parking spaces proposed is one short of that required pursuant to Clause 52.06 (1 space per one or two bedroom dwelling and 2 spaces for three bedroom dwellings, plus one visitor space for every five dwellings).
3. The proposal therefore makes adequate provision for resident parking. The one space shortfall in parking is related to visitor parking.
4. The council and the objectors submit that the failure to provide car parking at the rate specified in Clause 52.06 will adversely affect parking availability within the local street network and that it is an indication of the proposal's overdevelopment of the site.
5. I note the council's traffic engineers did not raise concerns about the adequacy of the parking supply, or the use of the car lift and stacker system.
6. I also have had the benefit of the expert traffic evidence of Mr Hardingham in undertaking my assessment of this aspect of the proposal.
7. Based on Mr Hardigham's parking surveys, I am satisfied that there is adequate on street parking available in the surrounding streets to accommodate visitor parking associated with the proposal. The review site's proximity to public transport is a further relevant consideration with respect to the adequacy of on site car parking.
8. The council and the objectors also oppose the proposed use of the car lift. Their objections are two fold. Firstly they submit that the car lift is an inconvenient and time consuming mechanism that many residents will be reluctant to use, and will instead prefer to car park on street, further congesting the local street network. Associated with that, is a concern that the logistics of using the car lift is likely to lead to queuing in St David Street as vehicles seek to access the site at a time when other vehicles are leaving, and when drivers are required to wait for the lift to arrive at ground level and become available to be used.
9. The second aspect of the car lift that is of concern to the council and the objectors is amenity related associated with the lift's location adjacent to the dwelling at 88 St David Street. Mr Ryan in particular expressed concerns about the noise and vibration emanating from the lift, and noise, fumes and disturbance associated with vehicles that will need to prop immediately adjacent to the habitable room windows of the dwelling at 88 St David Street.
10. In response to the concerns about the amenity issues, by Order dated 17 August 2012 I directed the applicant to serve on the Tribunal, the responsible authority and all other parties, a report prepared by a suitably qualified acoustic consultant. The report was required to assess the acoustic impacts of the car lift associated with the proposed development of the land on 88 St David Street Fitzroy.
11. All parties were provided with the opportunity to make written submissions on the report.
12. The report[13] was subsequently received and a submission in response was received from Mr Ryan, the owner and occupier of the abutting dwelling.
13. Mr Hardingham in his evidence provided a detailed explanation of the operation of the car lift, and of the traffic generation and vehicle movements associated with this proposal. Mr Hardingham's evidence on these matter provides a useful context for the consideration of the issues raised by the council and the objectors. In summary it is Mr Hardingam's evidence that:
    • The 12 dwellings are likely to generate 22 trips per day[14].
    • Three of the 22 trips are likely to be generated during each of the morning and afternoon peak hours.
    • The lifting speed of the car lift is such that the lift will take 31 seconds to travel between levels. The time for the lift doors to open and close must be added to that time.
    • Because of the low traffic generation, the likelihood of exiting and entering vehicles meeting is very low. In the event that this does occur, space exists in St David Street for an entering car to stop and wait for the exiting vehicle. Through traffic on St David Street is unlikely to be affected. Space for two vehicles to pass is available in the basement.
14. The use of car stackers and mechanical parking systems of the type proposed in this application, have over recent years become increasingly popular throughout metropolitan Melbourne in developments of the type proposed in this application. While the use of these systems may still be outside the experiences of most people, there is nothing that is especially complicated, sophisticated or daunting about this proposed system that would lead me to conclude that it should not be applied in the context of this site. It is relevant that the number of vehicles to be parked on site is relatively low, as are the traffic volumes generated by the proposal. St David Street is a local street with a 9.0 m carriageway width with parallel parking permitted on both sides. One hour parking restrictions apply Monday to Saturday between 7.30 am and 4.30 pm. St David Street is restricted to one way movements (west bound past the review site) with access from Gore Street. Beyond Napier Street to the west, Gore Street runs one way east bound.
15. Having regard to these characteristics of St David Street, I agree with Mr Hardingham's evidence that there is no traffic engineering reason that would preclude the use of the car lift and stacker system for this proposal.
16. With respect to the amenity impacts, the acoustic report comments that the installation of a car lift into a building represents a unique system requiring individual acoustic assessment. Because there is no product specific acoustic performance data available, the assessment is based on an existing installation of a lift product (Omer Totalmove 30L), installed at a site in Heidelberg. The report establishes performance criteria for both noise and vibration, and benchmarks the survey results for the Heidelberg facility against these criteria. The report identifies the noise and vibration sources, and makes specific recommendations with respect to each of these sources. The report concludes that as part of the installation of the Omer Totalmove 30L (or similar) at 247 Gore Street, upgraded features as itemised in the report would be required.
17. Mr Ryan's submission raises a number of concerns about the acoustic report. These include:
    • The applicability of the test results for a product, which is only similar to the one, used for testing purposes. Site specific conditions have not been taken into account.
    • Readings were not taken at properties neighbouring the review site.
    • No account is made for deterioration in the mechanism.
    • No assessment has been made of the impact of vehicles idling while waiting for the lift doors to open or close.
18. I agree with aspects of Mr Ryan's submission but I am satisfied that the Marshall Day acoustic report provides an appropriate framework for the installation and use of the car lift system. Many of Mr Ryan's concerns can be addressed through the permit conditions I have imposed. In particular, the conditions require the installation, use and maintenance of the system to be in accordance with the Marshall Day report. The conditions require that the system to be installed must be the system that was the subject of the testing regime. I have also imposed a condition requiring the permit holder to verify compliance with the Marshall Day report on an ongoing basis.
19. Having regard to the relatively low number of vehicle trips generated by a development of this scale, I am not persuaded that any adverse affect associated with idling vehicles in or at the entrance to the lift, would be unacceptable.

1. It follows from the above reasons that it is my conclusion that the decision of the Responsible Authority should be set aside and a permit issued.
2. In deciding the conditions to be included on the permit I have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons.

• The construction of two or more dwellings on a lot.
• Demolition of buildings, construction of a building and construction and carrying out of works
• Reduction in the provision of car parking from the rate specified in Clause 52.06

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans substituted by the Victorian Civil and Administrative Tribunal (by Order dated 17 August 2012) but modified to show:

1. A stormwater retention system on site which is designed to detain stormwater and limit the flow rate into the local stormwater system equal to that of a site with 20 percent permeable surfaces. 2. The front fences of Units I and 2 to have a maximum height of 1.5m with 50 percent transparency.

1. Full details of materials and colors.
2. All development must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.
3. The car lift system to be used must be the Omer Totalmove 30L that was the subject of the acoustic testing undertaken by Marshall Day Acoustics (report titled 247 - 249 Gore Street Fitzroy, Hydraulic Car Lift Acoustic Assessment Rp 001R02, 2012321ML, 24 January 2013), unless an alternative system is approved by the responsible authority. The noise and structural vibration performance criteria for the system must be in accordance with the recommendations of the Marshall Day report. The car lift system must be designed, installed and operated in accordance with the recommendations of the Marshall Day report.
4. Prior to the commencement of construction, a report prepared by a suitably qualified acoustic engineer to be approved by the responsible authority, must be submitted to and approved by the responsible authority. The report must verify the building structural design against the noise and structural vibration performance criteria recommended in the Marshall Day report.
5. After the installation of the car lift system and prior to the occupation of the building, a report prepared by a suitably qualified acoustic engineer to be approved by the responsible authority, must be submitted to and approved by the responsible authority. The report must verify that the car lift system is operating in accordance with the noise and structural vibration performance criteria recommended in the Marshall Day report.
6. The car lift system must be maintained to the satisfaction of the responsible authority and must continue to operate in accordance with the approved noise and structural vibration performance criteria. In the event that the car lift system does not meet the noise and structural vibration performance criteria, rectification action must be implemented to the satisfaction of the responsible authority, to ensure that the criteria is met.
7. Prior to the occupation of the new sections of the building, any wall on the boundary of an adjoining property must be cleaned and finished to the satisfaction of the Responsible Authority.
8. Any damage to road(s) and footpath(s) or other Council infrastructure as a result of the development must be reinstated to the satisfaction of the Responsible Authority.
9. The car parking area must be used for no other purpose to the satisfaction of the Responsible Authority.
10. The access and egress to the car park, and the layout and design of the car park must be in accordance with Clause 52.06 of the Yarra Planning Scheme and to the satisfaction of the responsible authority.
11. All piping and ducting, other than for drainage above the ground floor of the building must be concealed.
12. Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and meters. No private pits, valves or meters on Council property will be accepted.
13. The development must be provided with lighting capable of illuminating access to each car parking space, bicycle parking space, store, rubbish bin, recycling bin, pedestrian walkways, stairwells, lift, dwelling entrances and entry foyer. Lighting must be located, directed, shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within and beyond the site, to the satisfaction of the Responsible Authority.
14. Before the development starts, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved in writing by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval. All waste management must be in accordance with the endorsed Waste Management Plan.
15. Before the development starts, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved in writing by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval. The plan must include, but not be limited to the following.

1. A pre-conditions survey of all adjacent Council roads and footpaths. 2. Protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site).

1. Remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site).

1. Containment of dust, dirt and mud within the site and method and frequency of clean procedures in the event of build up of matter outside the site. 2. On site facilities for vehicle washing. 3. Methods for management of noise and general nuisance. 4. Details of any temporary fencing. 5. Site security. 6. Waste and stormwater treatment. 7. Construction program. 8. Preferred routes for trucks delivering to the site.

1. Delivery and unloading points and expected frequency. 2. An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services. 3. An emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced. 4. Traffic management measures to comply with provisions of AS 1742.3-2002 Manual of Uniform traffic control devices - Part 3: Traffic control devices for works on roads. 5. Contractor details. 6. Full details of implementation of the approved Construction Management Plan.
2. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 pm,. Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
3. This permit will expire if any of the following occur:
   1. The development is not commenced within two (2) years from the date of this permit;
   2. The development is not completed within four (4) years from the date of this permit;

The Responsible Authority may approve extensions to these time limits if requests are made before the permit expires or within 3 months afterwards.

[1] Clause 52.06 was amended by Amendment VC95 on 19 April 2013. Having reviewed the amendment I am satisfied that it has no substantive affect on the issues in this case.

[2] Refer for example to Clauses 11.02, 16.01 and 16.01-3 of the State Planning Policy Framework (SPPF). Refer also to Clauses 21.04 and 21.05-2 of the Local Planning Policy Framework (LPPF).

[3] Refer for example to Clauses 15, 16, 21.03, 21.05, 22.02, 22.03.

[4] The heritage adviser was not called to give evidence in this matter.

[5] For example: Development should protect the silhouette/profile of the church spire on the corner of

Watkins Street and St Georges Road, North Fitzroy, seen from the intersection of

[6] Richmond Icon Pty Ltd v Yarra CC (includes Summary) (Red Dot) [2011] VCAT 2175

[7] [2011] VCAT 2175, paragraph 65.

[8] [2011] VCAT 2175, paragraph 65.

[9] [2011] VCAT 2175, paragraph 65.

[10] [2011] VCAT 2175, paragraph 66.

[11] Cremorne Corporation Pty Ltd v Yarra CC [2008] VCAT 1202, The Crema Group Pty Ltd & Ors v Yarra CC [2011] VCAT 199

[12] For example: Richmond Icon Pty Ltd v Yarra CC [2013] VCAT 298.

[13] Prepared by Marshall Day Acoustics; 247 - 249 Gore Street Fitzroy, Hydraulic Car Lift Acoustic Assessment (Rp 001R02, 2012321ML) 24 Janauary 2013.

[14] This number equates to 44 movements through the car lift.