Mr Michael Wright QC and Peter O'Farrell both of Counsel. They called the following expert evidence during the hearing - planning evidence from Mr Marco Negri of Contour Consultants, plus design evidence from Mr Tim Biles of Message Consultants.

The construction of a multi-storey building to be used as dwellings and some form of retail use in a Business 2 zone, Design and Development Overlay (Schedule 8) and Environmental Audit Overlay with associated car parking dispensation, in accordance with the endorsed plans provided for. The revised plans substituted at the Tribunal hearing show the amended maximum height of the new building as being 53.25 metres and it will have 17 levels plus the rooftop area. Whilst at the hearing Council treated the proposed retail use as being in the form of a "shop", it was clarified by the Applicant that the proposal seeks not only "dwelling" approval, but also approval for "retail premises" rather than merely "shop". This was opposed by Council.

Section 79 of the Planning and Environment Act 1987 (failure of the Responsible Authority to make a decision in the statutory period).

Business 2 Zone and Design and Development Overlay Schedule 8 (Forrest Hill Precinct). The site is also affected by a Environmental Audit Overlay. Under the DDO8, the site falls within the Claremont Street Character Area. Also see the Guidelines for Higher Density Residential Development.

Clause 34.02-1 - a permit is required under the Business 2 Zone to use the site for dwellings and a shop.

Clause 34.02-4 - a permit is required under the Business 2 Zone for buildings and works.

Clause 43.02 - a building and works permit is required under the DDO8.

Clause 52.06 - car parking dispensation is required.

SPPF - Clauses 11.01, 13.03, 15.01, 15.02 and 16.01.

LPPF - Clauses 21.02-2. 21.03, 21.04, 21.05-1, 22.02, 22.05, 22.06, 22.09, 22.12, 22.13 and 22.17.

The appeal site lies on the eastern side of Claremont Street in South Yarra, just north of Toorak Road and about 140 metres north-east of the South Yarra Railway Station. The site is relatively narrow but deep, with an overall area of about 590 square metres. It is currently vacant.

After the hearing the Tribunal carried out an inspection of the length of Claremont Street, together with riding around a number of other local streets.

1. The subject land is located in the eastern side of Claremont Street in South Yarra, about 100 metres north of Toorak Road and roughly 140 metres north-east of the South Yarra Railway Station. It is located within the Forrest Hill Precinct under the Stonnington Planning Scheme, and also forms part of the broader South Yarra Principal Activity Centre. The site enjoys excellent access to local public transport, leisure and retail facilities.
2. It is a relatively narrow but deep site with a frontage of 14.63 metres, a depth of 40.23 metres and an overall site area of about 590 square metres. The site is zoned Business 2 but is also affected by a Design and Development Overlay Schedule 8 and Environmental Audit Overlay.
3. In terms of the local area, this is an interesting and dynamic area which is presently undergoing major construction activity. Indeed, if one drives, walks or rides along Claremont Street, it is likely you would need to dodge the construction workers and vehicles involved in construction activity further north from the appeal site.
4. South Yarra is a fairly exclusive inner city residential location, albeit with a rather eclectic character, which is illustrated by there being a variety of building ages, styles and sizes. Indeed, this eclectic character of South Yarra was reflected in the following way - during my site inspection which involved riding the length of Claremont Street and also inspecting the immediate area, I observed on the one hand some exotic European vehicles such as a Porche 356, a Jaguar XJS, a recent model Bentley and several Ferraris located within a showroom/display area. However I also took note of a rare 1970s Australian Chrysler Charger and also the unlamented Ford Taurus.
5. In a situation where the subject land falls within the Forrest Hill Precinct which has strong strategic planning support for much more intensive re-development, the owner of the subject land has put forward the proposal which I have described in full further above ie essentially a large residential tower with some form of ground level retail[1]. As Council had not made any formal decision on the proposal after the 60 day period, the owner has initiated an appeal to the Tribunal through the Major Cases List pursuant to Section 79 of the Planning and Environment Act 1987.
6. A Major Cases hearing was scheduled for 2 May 2011. In the lead up to the 2 May 2011 hearing, the Applicant circulated proposed substituted plans. These revised plans make the proposed tower marginally shorter and also incorporated various other design changes, which are itemised at paragraph 4 of the Applicant's written submission. Pursuant to these revised plans, the new building would provide for 88 one bedroom units, one "one bed plus a study" unit and 15 two bedroom units. In addition there would be 46 on-site car spaces, 36 bike rack spaces, 7 scooter spaces, and some form of ground level retail facility.
7. Council's position was that it did not oppose the substitution of these new plans, and in the lead up to the Tribunal hearing it advised in writing that in relation the five original grounds of objection which it had relied upon, it would only be pursuing grounds 2 and 3 at the hearing, namely:
   • The proposed building form fails to provide sufficient upper [western] level setbacks in accordance with Clause 22.17 and Clause 43.02 (Design and Development Overlays - Schedule).
   • The north-facing dwellings of the proposed building will cause unreasonable overlooking impacts to the dwellings in the northern abutting building at 12-14 Claremont Street.
8. At the commencement of this hearing, I dealt with certain preliminary matters with the representative of Council Mr Connor, together with the Applicant's representatives Mr Wright and Mr O'Farrell. What emerged was that:
   • there was a consent position that the revised plans provided to the Tribunal under cover of the Best Hooper letter dated 28 March 2011 (together with the remaining unchanged plans) could be accepted as the new application plans for the purposes of the proceeding;
   • in relation to the two remaining grounds of objection which Council had advised it would be pursuing, Mr Connor advised that Council was content not to pursue the "unreasonable overlooking impacts" ground, subject to the condition 1 sub-clauses being updated to incorporate the design modifications recommended to deal with this issue by the Applicant's planning expert witness Mr Negri - see Conditions 1(d) and (e) in the Appendix A to this decision. The Applicant was content with this position.
9. To summarise then, given the substitution of the revised plans and Council's indication that it would only be pursuing one grounds of objection (that the upper western setbacks would be inadequate), the balance of the hearing proceeded on the basis that it had effectively become a "single issue appeal". Accordingly, the aim of the submissions and of the expert evidence was to inform the Tribunal to ultimately deal with this remaining single contested issue, as well as some fine-tuning of some contested aspects of the draft permit conditions.
10. Over the balance of the hearing I then heard submissions from both advocates, and received the well prepared and helpful expert evidence of Mr Negri and Mr Biles. I should acknowledge that the booklet of plans and materials provided to me at the hearing was of an exceptionally high standard. By the end of the hearing, what had emerged was that it would be helpful for me if the Applicant could produce an updated artistic impression of how the western elevation of the new building will look, together with a short form summary of the relevant front setbacks of the other existing or proposed developments along Claremont Street. This information was duly provided to me soon after the hearing, and I appreciate the Applicant's assistance in this regard.
11. After the hearing I carried out an inspection of both the length of Claremont Street and I also looked around a number of other local streets.
12. In the final result, I have marginally increased the setback of the upper western elevations of the new building, so as to require a revised setback of 3.1 metres when measured at the northern end of the western upper facade (which is within 100mm of the recommendation of the Council urban designer). To the extent that Mr Connor indicated at the hearing that the Council Planning Department sought a upper western setback of more like 4.6 metres so as to achieve a virtual alignment with the uppermost western setback of the abutting Lilli building, that submission is rejected.

Extent of proposed upper western setback and setbacks of other nearby Claremont Street buildings or approved buildings

1. The revised plans which have been substituted show the intended upper western setback of the new building as being between 2.64[2] and 2.76[3] metres from the front boundary[4]. In other words, Council has no issue with the ground level, level 1 and level 2 aspects of the proposal being essentially built out to the front boundary as part of the "podium" aspect of the new building. Rather, the contentious issue is whether or not it is acceptable for the front setback of the new building to range between 2.64 to 2.76 metres in relation to those levels of the new building from level 3 upwards.
2. A key point of discussion during the hearing was how the new building would interface with the western elevation of the Lilli building which is well advanced in being constructed on the abutting land to the north. It was helpful in this regard that I was provided with a copy of the endorsed plans for this Lilli building. These endorsed plans tell me that
   • at ground level the Lilli building has a western setback of 1.5 metres;
   • at levels 1, 2 and 3 (ie the podium level) the western setback is about 771mm at its northern end;
   • at level 4 the western setback (ie excluding the terrace area) is 2.895 metres at the northern end of this elevation and 3.155 metres at the southern end;
   • levels 5 and 6 (which do not have any balcony) all feature a western setback of between 2.865 and 2.895 metres at the northern end of the elevation and about 3.12 metres at the southern end;
   • level 7 has a western setback simply measured in its middle point as being 2.96 metres;
   • in relation to levels 8 to 16, there is a further stepping in of the western elevation, so as to achieve a western setback of 4.84 metres measured part way along the northern section of the western elevation.
3. All of the above setback measurements in relation to the Lilli building exclude the decorative curly banding which has been added to its western setback as a design feature.
4. In relation to the front setback of other existing or proposed buildings along Claremont Street, I have attached in Appendix B to this decision the table which has helpfully been prepared by Hayball Architects and forwarded to me by the Applicant's lawyers Best Hooper after the hearing.
5. In summary then, the options open to the Tribunal in relation to the upper western setback treatment of the new building are:
   • to simply endorse the approach taken in the revised plans as set out in the booklet provided to me at the Tribunal hearing;
   • to marginally increase this upper western setback to 3 metres, which apparently was the figure recommended by Council's urban designer;
   • to substantially increase this upper western setback to 4.6 metres so as to achieve virtual alignment with the upper western setback of the top section of the Lilli building (being the position put to me by Mr Connor at the hearing); or
   • some other variation on the above in the Tribunal's discretion.
6. Turning now the Tribunal's assessment of this issue, it seems useful to compare those factors in favour of leaving the currently proposed upper western setback unchanged, compared to those factors which might support increasing this setback.

Factors in favour of leaving the currently proposed upper western setback unchanged

Aspects of relevant planning framework which support an unchanged upper western setback

1. I accept that some aspects of the relevant planning framework support the view that existing proposed upper western setback of between 2.64 and 2.76 metres is acceptable.
2. We know that the subject land falls within the Business 2 Zone and the Design and Development Overlay Schedule 8 (Forrest Hill Precinct). It is common ground that of all the different planning precincts across metropolitan Melbourne, the Forrest Hill Precinct stands out as being a location where land values are high and the Planning Scheme is overtly encouraging quite intensive redevelopment of the land within the precinct. Putting this in simple terms, the Forrest Hill Precinct clearly is a "go go zone", where anyone choosing to live, work or walk through this location has to expect quite prominent, tall and robust new built form as this location is gradually redeveloped.
3. Where we have this type of situation where the relevant planning framework is offering strong overt encouragement for the quite ambitious redevelopment of this precinct, I acknowledge that this strong encouragement is a factor in favour of leaving the currently proposed upper western setback unchanged.
4. My finding here is reinforced by the following feature of the DDO8 that affects the site. This DDO8 provides for seven Character Areas. Four of these Character Areas include a mandatory minimum upper level setback. The subject land falls within one of the other three Character Areas where no such minimum upper level setback applies. Whilst this does not create an open slather situation (ie ordinary "good design" policies and considerations still apply), this situation is a "plus" in terms of the case for not increasing the existing setback arrangements.
5. Also see my comments below regarding the reference at page 48 of the 2007 Forrest Hill Structure Plan to the role of "distinctively different architectural forms".

Would pedestrians walking near the subject building experience unreasonable visual bulk or otherwise feeling unduly "closed in"?

1. One of the key criticisms put forward by Council of the current proposed upper western setback treatment is that Council sees it as likely that this treatment will result in a pedestrian in this section of Claremont Street experiencing excessive visual bulk and/or feeling unduly "closed in" by the upper western section of the building extending so close to the front boundary. This was disputed by Mr Negri and Mr Biles.
2. On balance, I find the evidence of Mr Negri and Mr Biles on this point to be more persuasive, and I accept that the average person walking on this section of Claremont Street is unlikely to experience visual bulk or feel closed in by the proposed upper western setback treatment. Putting this another way, I expect that typically the average person walking in this section of Claremont Street will have a view line which only picks up the first few levels of any one building, and it would be more atypical for that person to take any particular notice (in a narrow street like this) of the extent of the western setback of the upper sections of this new building. Whilst I am not suggesting that this situation will always be the case across metropolitan Melbourne, I endorse the evidence of Mr Biles and Mr Negri in this type of situation where there is a narrow street where there are already intensive levels of redevelopment occurring and most of the street will over time feature very prominent existing or new buildings built relatively close to the street.

Factors which are supportive of a greater upper western setback than that currently proposed

Is a greater upper western setback required taking into account the front setback of the range of existing and approved buildings along Claremont Street?

1. If one looks at the real diversity of front setbacks for the relevant Claremont Street buildings as set out in the Appendix B information, I am satisfied that this diversity does not generate in itself any need for a 4.6 metre upper western setback for the subject building. However I can see some case here for a marginal increase beyond the contentious setback range currently proposed. In other words, I can see a legitimate case that whilst no major changes are required, the currently proposed upper western setback is unduly modest even when seen in the range of other front setbacks along Claremont Street as set out in Appendix B.

Is an additional upper western setback justified by the role of longer distance views of the new building, by the relationship between the subject building and the Lilli building and/or by other aspects of the relevant planning framework?

1. It seems useful to tackle this aspect of the analysis having regard to that part of the Lilli building up to and including level 7, compared to the balance of the Lilli building extending up to level 16.
2. Dealing first with the relationship between the subject building and levels 0-7 of the Lilli building, I accept that there is a good case in favour of managing the interface between the northern end of the subject building and the southern end of the Lilli building so as to achieve an equivalent western setback (or very close to) of both buildings. I am mindful here that (with the benefit of my site inspection) a person standing at either end of the north-south section of Claremont Street will have more distant views of both the subject building and the Lilli building and how the two interface with each other.
3. The reality is that the Lilli building is now essentially externally completed, and hence forms part of the neighbourhood character of this locality. In my view it is the preferable neighbourhood character outcome for levels 3-7 of the subject building to avoid jutting out in front of the equivalent levels of the Lilli building ie such jutting out would in my view be a poor neighbourhood character outcome and would detract from the attractive design of the western side of the Lilli building.
4. Achieving an outcome where the lower levels of both buildings up to level 7 have the same alignment (or very close to) will in my view contribute to a more attractive streetscape and be a better overall design/planning outcome. This outcome also reflects:
   • one of the DDO8 preferred character outcomes for the Claremont Street Precinct being "...a coherent streetscape", together with a relevant design objective being "To encourage well designed human scale development in Claremont Street to complement its mixed use role";
   • Clause 22.17-3 of the Planning Scheme encouraging a new precinct character featuring podiums built to the street edge and towers set further back ie there still needs to be a meaningful distinction between the two design elements;
   • one of the Design Standards at page 48 of the Forrest Hill 2007 Structure Plan being that "The built form of new development should have regard to the emerging character being established by recent and approved development in the street". The Lilli building is an example of this emerging character in Claremont Street.
5. By contrast, if one is considering a situation in relation to levels 8 to 16 of the Lilli building, these upper levels have a considerably greater western setback of 4.84 metres. I agree with Mr Biles and Mr Negri that this greater upper western setback for levels 8 to 16 of the Lilli building is a good design response when one takes into account the much wider frontage of the Lilli site compared to the subject land, in the interests of avoiding the upper sections of the Lilli building becoming visually overbearing (at least in relation to more distant views).
6. The situation with the subject building is quite different, in the sense that the subject land only has a frontage to Claremont Street of 14.63 metres, and hence the subject building presents to Claremont Street in a much narrower manner. In this situation, I agree with Mr Biles and Mr Negri that it seems an excessive outcome for the upper western setback of the new building to be pulled right back to 4.6 metres or so to achieve alignment with levels 8 to 16 of the Lilli building. I consider this would be an overkill given the much narrower nature of the subject building (which Mr Biles described as designed to be a "tall, slender tower") as it presents to Claremont Street, together with the interesting/attractive contemporary design of the new building.
7. In addition, the design of the western setback of the subject building includes substantial breaks in the massing of the western elevation that should through this sophisticated design approach further soften its appearance. I have given some weight to Mr Wright's submission that a 4.6 metre setback would noticeably impact on the yield/internal amenity outcome. It is also a "plus" for the proposal that the new upper western elevation has been designed by a major architectural firm and I am satisfied is an interesting and high quality design response. It seems a fair query from Mr Biles as to why an interesting upper front facade needs to be hidden away as much as Council is proposing.
8. My finding that a 4.6 metre upper western setback is unnecessary is reinforced by the fact that the December 2007 Forrest Hill Structure Plan at page 48 sets out the following Design Standard for new development in the location (with my underlining):

New development should optimise the provision of accommodation provided that it is not unreasonably visually overbearing when viewed from the nearby streets or properties and it provides a reasonable standard or visual and acoustic privacy, daylight, solar access, natural ventilation and outlook, without relying on the airspace above adjoining properties. Any new accommodation above the height of the STREET WALL should be clearly articulated from the STREET WALL. This may be achieved through a front setback. However, alternative measures for achieving this standard - such as distinctively different architectural forms, facade treatment, materials or colours - may also be acceptable.

The built form of new development should have regard to the emerging character being established by recent and approved developments in the street.

However I endorse the approach taken by Hayball Architects here that some degree of upper western setback is still appropriate, notwithstanding that the new western elevation will have a quite distinctive appearance.

1. In weighing up the various factors for and against the currently proposed upper western setback being increased, on balance I see Council's criticisms of the currently proposed upper western setback as compelling enough to justify a marginal increase beyond that currently proposed. However I am unconvinced that any of the factors relied upon by Council justify a major increase in this setback to the revised figure of 4.6 metres put forward by Mr Connor at the hearing.
2. In summary, I see an acceptable planning outcome in relation to the upper western setback of the new building to be as follows.
3. The ground, first and second levels of the subject building (ie the podium level) are non-contentious and can remain as-is.
4. In relation to the remaining levels of the new building from level 3 upwards, the western external wall of these upper levels of the new building must be set back by a minimum of 3.1 metres when measured at the northern end of the upper western setback (which is within 100mm of the recommendation made by the Council urban designer). For the removal of any doubt, this 3.1 metre minimum setback requirement does not include the level 3 balcony and the architectural feature running up the centre of this western elevation from level 4 upward. I am satisfied that this should have only a fairly modest impact on the internal amenity/yield outcome and that this change will not necessarily preclude the new building incorporating two bedroom units.
5. There was some discussion over the last part of the hearing regarding some other aspects of the draft permit conditions where the parties had a difference of views. These contentious aspects were helpfully marked up in red in the version of the permit conditions provided to me by the Applicant. Taking the submissions of the parties into account regarding the remaining contentious aspects, I have exercised my discretion in relation to same and have set out the final version of the permit conditions in Appendix A to this decision.
6. In relation to the "shop" versus "retail premises" and the "should there be limited trading hours" debate, I can indicate that I found Council's position more compelling. However it might be possible (with a favourable track record over time) for these issues to be re-visited at a later time, when there is a less speculation involved. In relation to Condition 9(b), if the owner/developer can produce convincing evidence that despite reasonable sales efforts over a demonstrable period to sell all on-site car parking spaces there are simply unwanted surplus car spaces, the revised wording of this condition allows Council to potentially allow some flexibility in this regard. However in my view it is important that the default position is that there should be no more than one car space per dwelling. With respect to Condition 35, I see no good reason to depart from the usual "two plus four years" requirement that the Tribunal normally expects in this situation.

The construction of a multi-storey building to be used as dwellings and shop in a Business 2 zone, Design and Development Overlay (Schedule 8) and Environmental Audit Overlay with associated car parking dispensation, in accordance with the endorsed plans provided for.

1. Before the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the book of plans submitted to VCAT on 2 May 2011, but modified to show:
   • (a) In relation to those levels of the building from level 3 upwards (inclusive), the western external wall of these upper levels (when measured at the northern end of the western elevation) must be setback from the western boundary by at least 3.1 metres. For the removal of any doubt, this minimum setback requirement does not apply to the level 3 balcony or to the architectural feature running up the centre of the western elevation from level 4 upwards.
   • (b) The surface levels within the 1.5m ground level setback on Claremont Street are to match the corresponding footpath levels to the immediate west.
   • (c) An annotation on the ground floor plan stating 'the paving treatment for this 1.5m setback area will designed in consultation with Council so as to be consistent with overall public realm improvement works for Forrest Hill'.
   • (d) For Levels 7 to 16 (inclusive), for the two westernmost north orientated dwellings, the balconies screened to a height of 1500mm as depicted in Drawing A01.19A, Revision C 'Typical Privacy Screen Section' dated 13/4/11.
   • (e) For the same dwellings referenced in Condition 1(d) the narrow north facing slot windows to the living rooms are to be screened to a height of 1500mm.
   • (f) A schedule of building materials, finishes and colours for all external parts of the building including the provision of a coloured sample board with reflectivity of glass and finishes used in the building to be no greater than 20%.
   • (g) The dimensions and layout of car parking bays, tandem spaces, accessways, access gradients, headroom clearances, turning arcs, sightlines and structural columns such that they are in accordance with the Planning Scheme or otherwise to the satisfaction of the Responsible Authority.
   • (h) A specification sheet for the model of car-lift to be installed showing detailed design matters including platform width, levels, clearance height, speed and length.
   • (i) A close up drawing of the bicycle parking area, drawn to scale, confirming that the dimensions and layout of the bicycle parking spaces complies with the applicable Australian Standard.
   • (j) The ground floor plan to indicate the depth to which the roller door across the driveway (visible on the north elevation) is to be installed.
   • (k) The provision of maximum 1:14 graded entry to the commercial land uses from the Claremont Street footpath.
   • (l) An RL on the elevations and sections to indicate the height of the lift-overrun.
   • (m) All plant and equipment (including air-conditioning units) located or screened so as to minimise visibility from any of the nearby footpaths and from overhead.
   • (n) Location of all mechanical plant and equipment including, but not limited to, lift overruns, flues, exhausts and air-conditioning units.
   • (o) Provision of an underground water storage tank of at least 30,000 Litres.
   • (p) Measures to address Water Sensitive Urban Design, including:
     • (i) A site layout plan showing the location of proposed stormwater treatment measures to achieve compliance with the best practice performance objective set out in the Urban Stormwater Best Practice Environmental Management Guidelines, Victoria Stormwater Committee 1999.
     • (ii) A report outlining compliance with the best practice performance objective set out in the Urban Stormwater Best Practice Environmental Management Guidelines, Victoria Stormwater Committee 1999.
     • (iii) Design details, such as cross sections, to assess the technical effectiveness of the proposed stormwater treatment measures for measures other than water tanks.
     • (iv) Any consequential changes required as a result of submitting documents to satisfy conditions 3, 4 and 5.

All to the satisfaction of the Responsible Authority.

1. The development must be in accordance with the endorsed plans unless otherwise agreed in writing by the Responsible Authority.
2. Concurrent with the endorsement of plans, a Waste Management Plan generally in accordance with that prepared by Leigh Design dated 5 May 2010 must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:
   • (a) Dimensions of waste areas.
   • (b) The number of bins to be provided.
   • (c) Method of waste and recyclables collection.
   • (d) Hours of waste and recyclables collection.
   • (e) Method of presentation of bins for waste collection noting that the frontage of the site is not wide enough to accommodate the number of bins.
   • (f) Strategies for how the generation of waste and recyclables from the development will be minimised.
   • (g) If waste is to arrive in the ground level refuse room via a chute system details as to how waste will be sorted into hard, recycling and green waste to ensure minimal landfill results.
   • (h) Details confirming how the proposed waste area is physically large enough to accommodate the waste needs of the proposal.

When approved, the plan will be endorsed and will then form part of the permit and must be complied with at all times. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of plans, an Environmentally Sustainable Development Management Plan (ESD Management Plan) must be prepared by a suitably qualified person who is to the satisfaction of the Responsible Authority. The ESD Management Plan must be generally in accordance with the material submitted with the planning permit application by Simpson Kotzman and must address the following:
   • (a) Energy Management.
   • (b) Water Conservation and Re-use.
   • (c) Demolition and Construction Waste Management.
   • (d) Relevant statutory obligations, strategic or other documented sustainability targets or performance standards.
   • (e) Document the means by which the appropriate target or performance will be achieved.
   • (f) Responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.
   • (g) Demonstrate that the design elements, technologies and operational practices that comprise the ESD management plan can be maintained over time.
2. Concurrent with the endorsement of plans, a suitably qualified person must undertake a comprehensive wind tunnel test of the entire development and a Wind Climate Assessment Report must be provided for the written endorsement of the Responsible Authority. The report must be generally in accordance with that submitted by Vipac Engineers dated July 2010. Any modifications required to the development in order to ensure acceptable wind conditions must be submitted to and approved by the Responsible Authority as part of the plans for endorsement. The design details of any wind mitigation works must receive the endorsement of the owner's wind climate experts, preferencing the use of architectural features and planting to resolve any issued identified.
3. Within six (6) months of the commencement of buildings and works, a landscape plan must be prepared by a landscape architect or suitably qualified or experienced designer to show streetscape and public realm improvements to Claremont Street directly fronting the site to the satisfaction of the Responsible Authority and must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and three copies provided. The landscape plan must be developed in consultation with Council's Public Space Design and Development Unit and should be in line with the current masterplan and style guide for the area. The landscape plan must include:
   • (a) A survey (including botanical names) of all existing vegetation.
   • (b) Details of the areas streetscape and public realm context, including surfaces of existing finishes and materials of footpaths and kerbs.
   • (c) Details of any existing and proposed crossovers.
   • (d) Details of all finishes and materials of the footpath and kerb along Claremont Street and the intended suppliers and source of the materials.
   • (e) Details of proposed lighting and street furniture.
   • (f) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
   • (g) Landscaping and planting within any open communal areas of the site.
   • (h) The extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site.
   • (i) Details of all proposed hard surface materials including pathways, patio or decked areas.
4. Landscaping within the site must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
5. Prior to the commencement of streetscape and public realm works in Claremont Street, a fully detailed engineering plan showing all relevant information including detailed existing and finished surface levels must be submitted to Council's Infrastructure Unit for approval. The works must be completed in accordance with the approved plan to the satisfaction and under the supervision of Council. A supervision fee of 2.5% (plus GST) of the estimated cost of the works must be paid prior to the approval of the plan. Five (5) copies of the approved plan will be required.
6. Prior to the commencement of any use a Car Park Management Plan must be submitted to the satisfaction of the Responsible Authority. The Car Park Management Plan must include, but not be limited to:
   • (a) Designating parking spaces to the individual tenancies and dwellings to confirm the parking rate that is being allocated to each use.
   • (b) Unless otherwise permitted in writing by the Responsible Authority, provision for there being not more than one space allocated to any one dwelling, so as to ensure an equitable distribution of spaces.
   • (c) Details of how bicycle and scooter parking will be allocated.
   • (d) Allocation of storage areas to the various uses and dwellings.
   • (e) Details of signing and line marking of parking spaces and pedestrian pathways in shared zoned.
   • (f) How parking spaces are to be secured for the intended use.
7. Before the construction or carrying out of buildings commences, either; a certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or 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 residential use.
8. Prior to occupation, all screening devices designed to limit overlooking herby approved must be installed and not have more than 25% openings or they must be of solid translucent panels, permanent, fixed, durable and designed/coloured to blend in with the development and maintained thereafter to the satisfaction of the Reasonable Authority.
9. No structures (such as tables and chairs) are to be placed in the 1.5m setback area for the first 2m to the immediate south of the car park accessway so as to enable pedestrian sight lines.
10. Prior to occupation of the building or commencement of use, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
11. The crossover proposed is classified as a 'non-standard' crossing due to its width and separate approval must be obtained for this crossing from Council's Local Laws Department.
12. The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or stormwater management report.
13. The water tank must be connected as the primary point of supply for at least all grey water usage on the land.
14. All walls on or facing the boundaries of the site must be cleaned and finished to the satisfaction of the Responsible Authority.
15. The land must be drained to the legal point of discharge to the satisfaction of the Responsible Authority.
16. All plant and equipment (including air-conditioning units) shall be located or screened so as to minimise visibility from any of the surrounding footpaths and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority.
17. The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be conducted entirely within the site or from nearby publicly designated loading bays in a manner that limits interference with other vehicular traffic to the satisfaction of the Responsible Authority. The loading and unloading of vehicles and the delivery of goods to and from the premises must only occur between the hours of 7am and 10pm Mondays to Saturdays and between 9am and 10pm on Sundays or public holidays to the satisfaction of the Responsible Authority.
18. The collection of wastes and recyclables from the premises must be in accordance with Council's General Local Laws.
19. Noise emanating from the subject land must not exceed the permissible noise levels when determined in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1, to the satisfaction of the Responsible Authority. Any works required to ensure and maintain the noise levels from plant and equipment areas are in compliance with this policy must be completed prior to the commencement of the use or within 3 months of the occupation of the site and maintained thereafter, all to the satisfaction of the Responsible Authority.
20. The shop use must only operate between the hours of 7 am to 10 pm on any day.
21. The gymnasium is only to be used by residents of the building and their guests.
22. Equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans must not be located above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.
23. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
24. Unless with the written consent of the Responsible Authority, all services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
25. Prior to occupation, areas set-aside for parked vehicles and access lanes as shown on the endorsed plans must be:
    • (a) Constructed to the satisfaction of the Responsible Authority.
    • (b) Properly formed to such levels that they can be used in accordance with the plans.
    • (c) Surfaced with an all-weather sealcoat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority.
    • (d) Drained and maintained to the satisfaction of the Responsible Authority.
    • (e) Line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

All parking areas and access lanes must be kept available exclusively for these purposes at all times.

1. The existing footpath and laneway levels must not be lowered or altered in any way to allow access to the site unless to the satisfaction of the Responsible Authority.
2. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
3. Prior to occupation, access for persons with disabilities must be provided in compliance with the Disability Discrimination Act 1992 and such access must be maintained at all times the building is occupied or in use.

1. 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, but limited to 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) within the household welcome pack or a myki rail pass (of equivalent value) and registration information.
     • (iii) Bicycle parking and facilities available on the land.
     • (iv) Monitoring & review.
   • (c) A plan showing the bicycle parking area s to be provided for use by residents.
2. 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).
3. 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. This permit will expire if one of the following circumstances applies:
   • (a) The development is not commenced within two years of the date of this permit;
   • (b) The development is not completed within four years of the date of this permit.

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

Tower Setbacks Summary along Claremont Street, South Yarra

Front setbacks from levels 4 - 17 varies from 1.22m to 2.95m to the balconies and 3.5m to the sliding doors.

(Application to be refused under delegation therefore irrelevant in Council's opinion)

Levels 6 and 7 at the south corner setback 4.3m to the balcony and 6.1m to the wall. North corner setback 8.3m - 8.5m.

Level 7/8 to level 10/12 at south corner setback 6.1m to the wall. North corner 8.36m - 8.54m to the wall.

office (south bldg) and residential (north bldg) hence

Level 11/14 at south corner 6.12m to balcony and 11.095m to wall. At north corner 9.65m to the wall.

Level 13/16 at south corner 6.1m to 14.9m. At the north corner 9.53m to 9.65m to the wall.

This development has significantly larger site frontage.

Levels 4 - 17 setback 2.64m at the north west corner and 2.76m at the south west corner to the balconies. Setback varies from

3.79m to 4.75m to sliding doors. 14.63m site frontage

Levels 4 - 7 (middle tier) setback 1.925m to facade 'ribbon' and 2.895m to 3.155m to the wall. Levels 8 - 16 setback 3.6m to facade

Levels 4 - 8 built to street boundary for 22m length at the southern section and a 4m setback for a length of 26.8m at the northern section.

Level 9 built to the street boundary for length of 22m at southern section and a 9m setback for a length of 26.8m at the northern section.

Level 10 to street boundary for 10m length, a balcony at street boundary for a 12m length at southern section and an 11m setback for a length

Ground and level 1 built to the boundary. Levels 2 - 3 setback 3.6m to balcony and 4.9m to sliding doors. No setbacks provided to

two third of frontage to rest of tower, 0m to balcony and 1.085m to sliding door. Setback of 3.6m to balcony and 5m to sliding door to

one third of the frontage for levels 4 - 9. 12m site frontage.

Levels 5 - 14 setback 2m to balconies and 3.7m to sliding doors at closest point and 3.1m to balconies and 6.5m to sliding doors

Levels 4 - 15 setback varies from 350mm to balcony and 2.3m to sliding doors at north corner, 1.15m to balcony and 3.1m to sliding

doors at middle of frontage, 1.95m to balcony and 3.9m to sliding doors at south corner.

Level 16 setback 2.3m, 3.07m and 3.9m to balustrade and 8.1m to sliding doors

Level 17 setback is 6.17m to balcony and 8.1m to sliding doors

Level 7-19, 1.87m and 3.37m to balconies and 3.37m and 5.27m to wall

[1] It was put to me at the hearing that the Applicant had always intended the form of approval sought here to be "retail premises". Under the nesting system in the Victorian Planning Provisions, this term includes a number of different potential retail uses. By contrast, Council's position has been that it only sees the narrower use of "shop" as being the appropriate ground level use. Hence this was one of the remaining contested issues at the hearing.

[2] When measured at the northern end of the western elevation.

[3] When measured at the southern end of the western elevation.

[4] By way of explanation, the front wall of the new building (apparently like the Lilli building) does not precisely align with the front boundary of the subject land.