1. Having now heard from parties, read all the written material and visited the site and locality, we consider there can be little dispute that the site has very strong support within the Planning Scheme for an intensive redevelopment. Parties made reference to the many State and local policies that bear on the suitability of the site for redevelopment. The site is zoned Commercial 1 and is affected by Design and Development Overlay 16 (DDO16). The site forms part of the Church Street Neighbourhood Centre.
2. We consider that the key issue in dispute between the parties is whether the built form and the building design is an acceptable response to the site context and the directions set out in DDO16. DDO16 has been applied to guide redevelopment of commercially zoned land along Church Street. The four design objectives includes seeking to achieve innovative, high-quality architectural design that makes efficient use of land whilst enhancing the appearance and strengthening the identity of the centre. DDO16 has a mandatory maximum street wall height of 11 metres, a mandatory maximum building height of 11 metres, or 12 metres on a site with a slope of 2.5 degrees or more measured over a distance of at least 8 metres, and a mandatory 3 metre setback from land in a Residential Zone.
3. For the reasons that follow, we have decided to support the proposal but with the following main changes:
   • A reduction in the height of the building so that at no point does it exceed 12 metres.
   • Deletion of Dwelling 107 and its replacement with an office having a floor level at footpath height.
   • Provision of a minimum of 3 visitor car spaces.
   • The northern setback of Dwelling 303 increased to not less than 7 metres so that it achieves the B17 envelope from the southern boundary of 1A Simpson Place.
   • The eastern face of the balcony to Dwelling 303 increased to not less than 10.298 metres from the eastern boundary and the eastern wall of the habitable rooms of Dwelling 303 setback 19.140 metres from the eastern boundary.
   • An internal redesign of Dwelling 104 so that it achieves acceptable daylight as recommended by Mr McGurn.
4. In the following sections we deal with the key issue, and the merits of the proposal, as a series of questions. However, before we deal with those merit questions we firstly address the questions of law surrounding the correct interpretation of the mandatory controls in DDO16.

1. Three questions were identified concerning compliance with the mandatory provisions of DDO16:
   1. Does the building satisfy the condition allowing a 12 metre high building on a sloping site?
   2. Has the proposal demonstrated how the design objectives will be met in order to support a street wall less than 11 metres in height?
   3. Do the buildings and works achieve the mandatory 3 metre setback from the rear boundary?
2. We deal with each of these questions in turn.

1. DDO16 includes a mandatory maximum overall building height limit of 11 metres. However, a permit can be granted to exceed that height for roof top services and, relevantly to this discussion, also:
   • Where the slope of the natural ground level at any cross section wider than 8 metres of the site of the building is 2.5 degrees or more, in which case the maximum overall building height may be exceeded by one (1) metre.
2. Mr Nicholson gave sworn evidence about survey information set out in his affidavit. He also provided an additional response to written questions submitted by Mr Hoadley, who was unwell and unable to attend the hearing when Mr Nicholson presented his evidence and answered questions.
3. We do not recite all the material that has been presented but based on the material before us we have concluded that the proposal does benefit from the higher 12 metre height limit because the slope of the land does exceed 2.5 degrees at a cross section wider than 8 metres. Although Mr Hoadley suggested that the selected cross section should be a representative cross section that is not what the provision requires. Instead the provision refers to 'any' cross section.
4. The question of what represents natural ground level has also been discussed by the Tribunal and the courts on a number of occasions and these were referred to in the written submission made by Mr Tweedie and Ms Peppler. Of these decisions, Mrocki v Bayside CC (Red Dot)[2] provides a useful summary of the various cases and concludes:

[47] In the present case, the intention of the parties is not relevant because we are considering the use of this term in the context of a planning scheme. We therefore consider that when interpreting what is meant by 'natural ground level' we should be guided by what the Supreme Court said in Shire of Gisborne v King. In that case, the expression 'alteration to the natural conditions or the topography' was held to mean the surface or topography which immediately predated the making of the application in that case. Other cases have adopted a similar interpretation in finding that what is or was the natural ground level is the level of the land before it was disturbed by development for the particular proposal in question.[3]

1. As applied to the review site this would be the undisturbed condition of the site at the time the application was made to Council. It would, for example, include the impact of the long existing concrete hard stand area and asphalt seal on the car park. The Title Re-establishment, Feature and Survey Plan prepared by Bosco Jonson Pty Ltd and dated 24/08/15, identified at least two cross sections of more than 8 metres in width that have a slope that exceeds 2.5 degrees. The details of these are:
   • 30.30 RL to 29.65 RL over 10.48 metres - 3.5 degrees
   • 30.39 RL to 29.90 RL over 9.46 metres - 3 degrees (we calculate this at 2.84 degrees).
2. A further 9 metre wide cross section from 30.36 RL to 29.90 RL eastward from the concrete pad has a slope of 3 degrees.
3. A related issue raised by parties is what is meant by the term 'of the site of the building'. Council has submitted that it means that the cross section must be under the actual building footprint. On the other hand, Mr Tweedie and Ms Peppler have submitted that the 'site of the building' describes the whole of the land subject to the permit application. Whilst we accept that it could be of critical importance on some sites, in this case we are satisfied that a slope of more than 2.5 degrees exists in three locations under the proposed building and we do not need to make a finding about what is meant by 'of the site of the building'.

1. DDO16 includes a mandatory maximum street wall height of 11 metres. No minimum height is specified but DDO16 includes a provision that:
   • An application to reduce the street wall height in the relevant Table and Map at Subclause 7.0 of this Schedule must demonstrate how the design objectives of this schedule will be met.
2. The building has two street frontages. One to Church Street and one to Simpson Place. Different provisions apply to street setbacks depending whether they are to the primary street frontage or a side street frontage. We accept that Church Street is the primary street frontage and Simpson Place is a side street frontage. We observe that the side street frontage setback provisions only refer to development above the street wall height (11 metres) or where there is a reduction of upper storey setbacks (none apply here). Any reduction in the 11 metre street wall height to Simpson Street is required to demonstrate how the DDO16 design objectives are met. The provision does not prohibit a building with a reduced street wall to a side street, including to zero given no minimum is specified, and there are no requirements about minimum or maximum setbacks.
3. We agree with Mr Tweedie and Ms Peppler that DDO16 does not impose a mandatory requirement for a street wall in all cases. The setback requirements for a primary street frontage include that:

Development up to the street wall height should be built on or within 200mm of the site boundary along all street frontages. This may be varied, if the setback is:

1. This provision is listed under the sub heading 'primary street frontage', is not listed as a general provision and cannot be read as applying to side street frontages. We agree that the word 'should' means it is not a mandatory requirement.
2. As now designed, the building at Level 1 includes an area outside the café and the residential entrance which is setback 3 metres from the property boundary with the upper levels cantilevered out to the property boundary. The street wall in this location is at footpath level and the area between the wall and property boundary is fully accessible to the public. We consider that this outcome is consistent with the variation specifically referred to for primary street frontages. As we discuss later in our reasons, we also consider that a street wall lower than 11 metres meets the design objectives of DDO16.
3. Approximately half the Church Street frontage is occupied by a raised terrace for Dwelling 107. We later discuss why we do not support a dwelling along this part of the frontage and why we require it to be replaced by office floor space. Inclusion of an office, whether built to the street frontage or set back, would provide for a street wall that would either meet those design objectives relevant to this site or provide public access.
4. We consider that the street wall and setback provisions of DDO16 are not clearly drafted and difficult to interpret. Apart from clarity about the mandatory maximum height, it is difficult to understand the relationship between street wall heights and setbacks and what Council is trying to achieve if developments include street walls lower than 11 metres.

1. DDO16 includes the following mandatory setback requirement from Residential Zones:
   • Where a rear boundary is shared with a property in a Residential Zone, any development must be set back:
     • a minimum of three (3) metres; and
     • in accordance with the provisions of Clause 55.04-1 of the Planning Scheme thereafter.
2. The building is setback 4 metres from the rear or east boundary but the issue in dispute here is whether minor excavation for a courtyard, low retaining wall approximately 200mm high with a raised garden bed behind constitutes development. Council submits that these are development and are therefore prohibited.
3. The applicant, on the other hand, submits that the planting of trees and vegetation and works associated with that planting, such as a low retaining wall, are either not development or are exempt because they are gardening. The permit applicant also submits that paved decks (or courtyard) are exempt works by virtue of Clause 62.02-2.
4. We agree that Clause 62.02-1 specifically lists gardening as buildings and works not requiring a permit and we consider that the planting of vegetation and other activities associated with establishing the garden (digging holes for plants, mulching, watering systems and even a low retaining wall or angled bank approximately 200mm in height) all constitute works associated with gardening.
5. However, we are not persuaded that the 200mm excavation for the courtyards is exempt. Our investigation of the ground level floor plan and relevant cross sections reveal that the courtyards have a SFL of 28.800 whereas the spot levels along the boundary are between 28.99 and 29.03. During the hearing Mr Tweedie presented a plan indicting how a raised deck not requiring any excavation within 3 metres of the rear boundary could be provided instead of the courtyards. It would involve a narrow 1 metre wide courtyard outside each dwelling, which would provide access via two or three steps up onto an elevated deck (we note that decks to a dwelling with a finished floor level no more 800mm above ground level are exempt unless there is specific permit requirement in the Planning Scheme).
6. Whilst our preference is for the courtyards to be accessed at-grade from inside Dwellings G03 and G04, we have come to the conclusion that they are prohibited. We consider that the provision of raised decks as suggested by Mr Tweedie results in a sub-optimal outcome for both future residents and adjoining neighbours at 7 Hill Street but cannot be avoided because the excavation if prohibited. Instead of having a slightly excavated courtyard there is an elevated deck. Whilst the whole building could be setback further from the rear boundary, it is our understanding that the 3 metre setback and subsequent reference to setbacks thereafter in accordance Clause 55.04.1 (side and rear setbacks - Standard 17) is a means of varying the normal B17 setback envelope. Instead of the base of the B17 envelope starting on the boundary, it is set back 3 metres resulting in greater setbacks for all levels above.
7. We accept that the additional setback can have benefits for neighbouring properties but that is based on limiting the visual impact of built form. We do not accept that the 3 metre setback was aimed at prohibiting the normal range of outdoor spaces associated with dwellings including paved courtyards and raised garden beds, although that is the effect of the mandatory control. For instance, in more modest town house style proposals, a 3 metre setback would normally be incorporated into the secluded open space area and used for soft landscaping (trees, shrubs and lawn), hard landscaping (paving), and even clothes lines and garden sheds.
8. It is unfortunate that the setback provision in DD016 is not more clearly drafted to exclude development except for works associated with creating secluded open space areas. However, we have come to the conclusion that the excavation for the courtyard is not exempt and we therefore support the permit applicant's proposal for an elevated deck within the 3 metre rear boundary setback area. Two concept drawings were prepared by John Patrick Pty Ltd showing how a workable outcome could be achieved. We support this approach and have included a condition requiring these changes to be included.

WHAT DOES THE PLANNING SCHEME HAVE TO SAY ABOUT USE AND DEVELOPMENT ON THIS SITE AND IN THIS LOCATION?

1. Having now determined that the proposal does benefit from the 12 metre height limit, it is still necessary for us to evaluate it against the broad suite of planning provisions relevant to such a mixed use building in this location.
2. Put into a broader context, Melbourne currently has a population of approximately 4.5 million, which is expected to increase to approximately 8 million over the next 50 years.
3. Plan Melbourne[4] is the strategic plan for Melbourne. Although it is currently under review, it emphasises urban consolidation and the importance of infill housing in meeting anticipated demand for new dwellings. There is acknowledgement that up to two thirds of the anticipated 1.57 million new dwellings required by 2051 will be provided within established areas.[5] Key areas to accommodate medium and higher density housing include activity centres and locations near services, jobs and public transport.
4. State policies in the Planning Scheme support the intensification of development in activity centres and sites. They are to be the focus for high quality development, activity and living for the whole community and it is to be achieved by encouraging a diversity of housing types at higher densities in and around activity centres.[6] They include policies aimed at increasing housing supply on land with ready access to the Principal Public Transport Network (PPTN) and facilitating increased housing yield in appropriate locations including under-utilised urban land.
5. State policies also seek to achieve high quality urban design and architecture that contributes positively to local urban character and sense of place, require development to respond to its site context in terms of urban character, cultural heritage, natural features, surrounding landscape and climate, and protect Melbourne and its suburbs from inappropriate development.
6. Local policies reflect the directions set out in State planning policies. They provide more detailed guidance as to where intensive development is to be encouraged and specific controls on the types of built form that may be acceptable in different activity centres.
7. Clause 21.07 (residential land uses) acknowledges the dominance of residential land use in the municipality and includes strategies to provide a mix and range of housing types and forms and to increase residential development opportunities (including higher density development) in and around commercial centres and other strategic locations.
8. Clause 21.08 concerns Activity Centres, Neighbourhood Centres and Commercial Corridors. Church Street Hawthorn, which includes the review site, is identified as being within a Neighbourhood Centre. Clause 21.08-1 records that:

Neighbourhood centres provide a vital component of the City's activities and are integral to the local economy. They provide a focus for goods, services and employment and are an important focal point for community life and interaction. The centres are supported by the Principal Public Transport Network and will be the focus of mixed use development over the next two decades.

1. Eight objectives at Clause 21.08-3 seek:
   • To maintain and strengthen the network of activity centres, neighbourhood centres and commercial corridors within Boroondara.
   • To encourage and retain retail expenditure within Boroondara.
   • To strengthen and consolidate the role of the Camberwell Junction Activity Centre.
   • To support neighbourhood centres to meet local convenience needs and provide community interaction.
   • To strengthen the office, commercial, restricted retail and industrial function of the commercial corridors.
   • To support the long term viability of the commercial corridors to complement and support (rather than compromise) the designated activity centre and neighbourhood centres.
   • To ensure appropriate built form outcomes that visually enhance the streetscape and have regard to adjoining residential amenity.
   • To encourage higher density residential development, including social and affordable housing.
2. Clause 22.10 is specific land use and design policy for Neighbourhood Centres and Commercial Corridors and is based on the Neighbourhood Centres and Commercial Guidelines, City of Boroondara 2014, which is listed as a policy reference at Clause 22.10-7.
3. Clause 22.10 expands upon the objectives in Clause 21.08 and provides more detailed guidance about the outcomes sought for these areas. It provides a long list of specific but different objectives and policies for land use and urban design and notes that the policy should be read in conjunction with DDO16. These were referred to in submissions and evidence and we do not list them all in our reasons. However, we consider they provide some important pointers as to what is trying to be achieved. In summary they include:
   • Strengthening the retail function of neighbourhood centres but encouraging non-retail activities to locate on the periphery of neighbourhood centres and/or upper levels of buildings.
   • Encouraging higher density residential development including social and affordable housing in appropriate locations.
   • Ensuring active ground level frontages and vibrant street level activity.
   • Ensuring development does not detrimentally impact on the amenity of residents of adjoining properties and protecting the amenity of future residents of the development.
   • Encouraging mixed use development with retail, office and commercial activity on the ground floor and higher density residential uses on the upper levels in the Commercial 1 Zone.
   • Discouraging wholly residential development, and the location of residential uses at the ground level along the primary street frontage, in the Commercial 1 Zone.
   • Allowing upper levels to cantilever over any ground floor setback as far as the property line and encouraging the provision of weather protection over footpaths.
   • Ensuring the ground floor of new buildings is level with the abutting footpath and ensuring that ground floor dwelling entries are distinct and subordinate to the ground floor retail/commercial frontage.
   • Ensuring development contributes to an improved interface with established residential areas by providing recessed and articulated development of an appropriate scale.
   • Encouraging sites with access from a service lane to provide all vehicular access to the site from the lane and discouraging the creation of driveway crossovers from other streets.
   • Minimising impacts of overshadowing and overlooking on the amenity of adjoining properties and habitable room windows without compromising the amenity of future residents through the use of excessive screening.
4. Clause 22.10-05 specifies the material that should accompany an application including, as relevant to this proposal, information as to how the proposal achieves the design objectives and built form requirements of DDO16 and how it addresses overlooking and overshadowing in accordance with Clause 55 (ResCode). Reports and other information are to be provided about environmental sustainable design, car parking demand, traffic impacts, waste management and noise.
5. DDO16 aims to implement local policies by providing a statutory framework of built form parameters or requirements for future development in the Church Street Neighbourhood Centre. The Centre is classified into three areas with the majority of it being included in Area 2. It introduces a mandatory maximum street wall height of 11 metres, a maximum overall building height of 11 metres (or 12 metres on sloping sites as we have discussed earlier in our reasons) and a mandatory minimum 3 metre setback of any development from a rear boundary shared with a property in a Residential Zone.
6. One of Council's grounds of refusal concerned the composition of ground floor uses fronting Church Street. The Commercial 1 Zone includes an objective to create vibrant mixed use commercial centres. Clause 22.10 includes specific objectives and policy for land use. In addition to encouraging higher density residential development in appropriate locations, general policy for land use includes:
   • Encourage new retail, office/commercial land use activities that expand on the floor area currently devoted to these uses.
   • Encourage mixed use development with retail, office and commercial activity on the ground floor and higher density residential uses on the upper levels in the Commercial 1 Zone.
   • Encourage uses that facilitate day and evening activity.
   • Discourage wholly residential development, and the location of residential uses at the ground level along the primary street frontage(s), in Commercial 1 and Mixed Use zones.
7. For neighbourhood centres it is policy to encourage non-retail activities (including community services) to be located on the periphery of the neighbourhood centres and/or upper levels of buildings.
8. Whilst we accept that the proposal includes a non-retail use at the south end of the Church Street frontage closest to the neighbouring residential area, the dwelling is separated from that residential area by a substation and storage area. Whilst we accept that a non-residential use, such as a food and drink premises, may have more adverse impacts on adjoining dwellings and be less benign than a dwelling and substation, we nevertheless consider that policy support for commercial type activities at ground level in this location far outweighs any benefits arising from providing one dwelling as now proposed. Not only is there encouragement for retail, office and commercial activity on the ground floor and higher density residential uses on the upper levels in the Commercial 1 Zone, but there is also discouragement of residential uses at the ground level along the primary street frontages in the Commercial 1 Zone.
9. We therefore support the deletion of Dwelling 107 and its replacement with office floor space. We consider that the street wall should be set back at footpath level to match that of the food and drink premises and residential lobby. Providing a setback at footpath level will ensure that the area is both part of the public domain and fully accessible to the public, which are outcomes sought by DDO16. We also consider that this change of land use and setback at footpath level achieves in large measure one the four design objectives of DD16 which seeks:

To achieve innovative, high quality architectural design that makes efficient use of land whilst enhancing the appearance and strengthening the identity of the neighbourhood centres and commercial corridors.

1. Although Council and other parties were also critical about the interface of the proposed building with Simpson Place, we do not agree with those criticisms. In particular, we support the ground floor set back from the northern boundary. Simpson Place is very narrow for most of this distance and includes a shallow dog leg as it approaches Church Street. Providing a setback, not only at ground level but also at upper levels, visually opens up this stretch of roadway and allows for improved sightlines for motorists exiting the proposed basement ramp at ground level.
2. Providing two north facing apartments, which although set below street level, assists in activating what is currently a 'dead space'. We also support the way in which the food and drink premises includes windows facing onto Simpson Place. Although set behind a 1.2 metre wide landscaping strip, these windows help to visually open up the end of Simpson Place, provide passive surveillance of the public domain and allow more northern light into the food and drink premises. This represents a very good outcome when assessed against policy; we specifically draw attention to policy in Clause 22.10 which is seeking vibrant street level activity.
3. Although submissions raised amenity concerns about the difference in levels between Simpson Place and Dwellings GO1 and GO2, we consider that the amenity of these two north facing dwellings will be acceptable given proposed fencing and landscaping. These two dwellings will provide different amenity to dwellings elsewhere in the building but we are not persuaded that they are so substandard that they should be deleted or reconfigured. We take the same approach to the south facing dwelling G05, which is approximately 1 metre below ground level. Despite being recessed into the ground it has a well dimensioned, 42 square metres of open space accessed off 2 bedrooms and the living area. We also note that policy calls for variety and diversity in housing and these three dwellings help provide that diversity and variety.
4. Council has also raised a concern about the amount of natural daylight available to Dwelling 104. We agree that daylighting needs to be improved and concur with Mr McGurn that a minor reconfiguration will improve daylighting to an acceptable standard. We have included a permit condition requiring this change.

ARE THERE ANY UNACCEPTABLE OFF-SITE AMENITY IMPACTS?

1. Except for two areas, which we discuss later in our reasons, we consider that the building does not cause any unreasonable or unacceptable off-site amenity impacts to adjoining properties or to the wider neighbourhood.
2. It will be evident from our earlier comments that, in principle, we support a building of the overall height and scale of this proposal given the very strong policy support for more intensive mixed use development within neighbourhood centres. Provided the off-site amenity impacts are within acceptable bounds when assessed using the tools contained in the Planning Scheme, we are not persuaded by Council or neighbours that the application should be refused or substantially modified.
3. Unlike the various Residential Zones, which require a development of two or more dwellings on a lot to meet the requirements of Clause 55 (ResCode), the decision guidelines for the Commercial 1 Zone only require consideration, as appropriate, of the objectives, standards and decision guidelines of Clause 55. The DDO16 also requires setbacks to residential zones to accord with Clause 55.04-1 (standard B17) and to consider, as appropriate, whether the design supports the objectives and standards of Clause 55. The difference between meeting the requirements of ResCode in the Residential Zones ('must meet the objectives') and considering them in the Commercial 1 Zone is an important distinction and allows more flexibility in how ResCode is used.
4. An assessment of a building against the numeric ResCode standards in the Commercial 1 Zone provides some measure of how well a development 'fits' with its neighbours. Compliance with numeric ResCode standards concerning amenity impacts is often a good indication that a proposal is not an overdevelopment and that off-site amenity impacts have been well managed. In this context it is worth reiterating that the so-called 'standards' in ResCode are not standards in the way most people understand the word, as they are not mandatory.
5. Both Mr McGurn and Mr Sheppard utilised those most relevant parts of Clause 55 to assess impacts on neighbouring properties. These concerned standards for amenity impacts at Clause 55-04:- Standards B17 (side and rear setbacks), B21 (overshadowing) and B22 (overlooking). We agree with their assessments and conclusions with two important exceptions which both concern Dwelling 303 on the top level at the eastern end of the building.
6. The first concerns the upper level setback of Dwelling 303 from the northern boundary adjacent the townhouse at 1A Simpson Place. Setbacks at this interface are as follows:
   • Ground - variable but averaging 1.5 metres.
   • Level 1 - 3 metres.
   • Level 2 - 4.1 metres.
   • Level 2 - 4.102 and 7.079 metres.
7. The setbacks comply with standard B17 for all levels except that part of Level 2 which is setback 4.102 metres. It should be setback approximately 7 metres to meet the numeric standard. Whilst we accept that the south facing terraces and courtyards of 1A Simpson Place are secondary to the terraces facing north over Simpson Place, they nevertheless provide a valued contribution to the amenity of this dwelling, particularly at the two lower levels. Despite also being in the Commercial 1 Zone, we are not persuaded by Messrs Sheppard and McGurn that the proposed setback at 4.102 metres provides sufficient protection to the amenity of 1A Simpson Place. We therefore require the whole of the northern wall of Dwelling 303 to be setback not less than 7 metres from the northern boundary and have included a permit condition to that effect.
8. The second exception concerns the extent of overshadowing caused by Dwelling 303 to the rear yards at 9 and 11 Hill Street. In the case of 9 Hill Street the main impact is at 9am when the area receiving sunlight is reduced to just 30 square metres. Although the area receiving sunlight at 1pm and 2pm is also slightly less than 40 square metres, it is the period at 9am that concerns us most because of the extent of the reduction over the existing situation. As discussed at the hearing, we consider that a change to the setbacks of Dwelling 303 (including the planter on the deck) will lessen overshadowing to the south.
9. We have the same concerns about the rear yard to 11 Hill Street although at a different time of the day. At 11 Hill Street the main reduction in unshaded rear open space is between 1pm and 3pm with the most significant reduction either side of 2pm. It is our assessment that additional setbacks to Dwelling 303 will create less overshadowing.
10. To address our concerns we have included conditions requiring additional setbacks/changes to Dwelling 303.
11. Submissions also made reference to potential loss of privacy caused by overlooking from windows and terraces. The overlooking standard at Clause 55.04-6 only requires new windows, balconies and similar viewing points to be screened if they overlook and are within 9 metres of existing secluded private open space or habitable room windows. If overlooking is possible beyond 9 metres no screening is required, although many people would still feel a loss of privacy when overlooked from more than 9 metres away. With the following exceptions, we consider that overlooking has been managed in accordance with the 9 metre standard contained in Clause 55. The exceptions are southward views from the bedrooms in Dwelling 205, and northern, southern and eastern views from the eastern terraces of Dwellings 103, 203 and 303.
12. A related issue concerns landscaping and the contribution it makes in enhancing privacy to neighbours and filtering views of the lower levels of the building. Mr Howe attended the hearing and explained the landscaping proposal. Apart from upper level planter boxes, the main areas of landscaping are along the eastern and parts of the southern and northern boundaries. The choice of plant species was discussed at the hearing with suggestions made as to suitable alternative species along the southern and eastern boundaries.
13. We have included these suggestions in the landscape plan condition, although we note that the final landscape plan has to be approved by Council.

1. Vehicular movements to the site are proposed to be split between Simpson Place to the north and Hill Street to the south. All access will be via the 3.8/4.0 metre wide cobblestone paved laneway off Hill Street and all egress directly into Simpson Place. At present all access and egress to the site is via the laneway off Hill Street.
2. We note that Council's Traffic Engineers and Mr Walsh find that traffic impacts are acceptable and VicRoads does not object to the access arrangements. Although most statements of grounds and submissions referred to traffic impacts and access arrangements, no evidence was presented to us to contradict the opinions of Mr Walsh or Council.
3. Although some submissions sought access directly off Church Street, VicRoads does not support the provision of new access to an arterial road when alternative access is available from a local street. Whilst residents living in a local street may feel aggrieved by that approach, limiting access points to arterial roads does have benefits for the more efficient operation and improved safety of such roads.
4. A related concern raised by residents is the use of the laneway by demolition and construction vehicles. Whilst we understand their concerns about noise, congestion and possible damage to fencing and walls along the laneway, permit conditions require a construction management plan and a traffic management plan to be prepared to Council's satisfaction. We have amended the condition to require all demolition and construction vehicles to avoid using the laneway off Hill Street, unless otherwise agreed in writing with the Responsible Authority. We have not categorically precluded use of the laneway as we do not know whether VicRoads will allow direct access to Church Street given alternative access is available from the laneway.
5. We support the vehicular ingress and egress arrangements as now proposed and consider that dividing the traffic movements makes more efficient use of the basement layout, eliminates potential conflict between vehicles entering and leaving the site and spreads the traffic movements to different streets. In making these comments we are mindful that the existing car park, although not fully used at this time, generates 5 movements in the morning and afternoon peak, which are typically 10% of the daily volumes. On that basis, the laneway currently carries approximately 50 vehicles per day. A future one-way traffic flow to the development site will increase this to approximately 70 vehicle movements per day. Whilst that may seem a large percentage increase, in actual numbers it represents a relatively small number and within the environmental capacity of the laneway to cope with that number of vehicles.
6. The western end of Simpson Place currently caters for approximately 70 vehicles per day. That number is projected to almost double to 140 vehicles per day but we accept that it is within the environmental capacity of this narrow section of roadway leading out into Church Street.
7. The proposal has a requirement for 49 spaces based on the rates contained in Clause 52.06: - 3 for the food and drink premises, 41 residential spaces and 5 residential visitor spaces. Our conversion of Dwelling 107 to an office with a similar floor space of 118 square metres would require 3 or 4 spaces (at a rate of 3.5 spaces per 100 square metres of net floor area). We have simply reallocated the 2 spaces previously set aside for the 3 bedroom dwelling to the office.
8. 54 spaces are provided, which results in a surplus of 5 spaces without the replacement of Dwelling 107 with office floor space. The permit applicant seeks a complete waiver of the 5 residential visitor spaces and 2 of the food and drink premises (café) spaces so they can be allocated to residents. Council supports a partial reduction in the provision of residential visitor parking and 2 for the food and drink premises spaces. However, Council wants 3 residential visitor spaces provided.
9. We accept Mr Walsh's evidence, which was not disputed by Council, that the provision of 1 space for the food and drink premises (café) will cater for the operator and that the other 2 spaces represent a nominal provision of short term customer parking, which can best be met by on-street parking. A provision of 1 car space for a small food and drink premises (café) is consistent with the rate that has been accepted in many similar proposals located on public transport routes, within commercial areas and proximate to residential areas where walk-in trade will form an important part of the customer base. We have already commented about allocating 2 spaces to the office. This represents a reduction against the statutory rate of between 1 and 2 spaces but, as with the food and drink premises (café), we consider that short term customer/client parking can be best met by on-street parking.
10. We are less inclined to support a complete waiver of residential visitor parking despite surveys suggesting a maximum on-street occupancy of approximately 65%. Although convoluted access to basement parking is often cited as a reason to forego the provision of residential visitor parking, we are not persuaded that access off Hill Street is so difficult that it will dissuade visitors from entering and using the basement car park. We do accept that infrequent visitors and people visiting in quiet times may choose, as a first preference, to park on street but there will be other occasions when off street parking will be attractive, and used. This issue was commented upon by the Tribunal in a decision[7] tabled by Ms O'Neill, where there was an excess of parking on the site but a request to waive the residential visitor parking requirement because of the availability of on-street parking in the area. The Tribunal commented that:
    1. The proposal provides 32 car spaces against a residential parking requirement for 24 spaces when assessed using the rates set out in Clause 52.06. Four visitor spaces are also required, but the applicant has chosen not to allocate any of the spaces to visitors, instead has provided additional spaces to residents. Council did not raise any concerns about the amount of on-site parking although it was of concern to nearby residents.
    2. Whilst we accept that there may be sufficient on-street parking for visitors and that visitors may find the rear laneway access inconvenient to use, we do not accept that there should be no visitor parking at all available on-site. There appears to be an assumption that visitor parking is only used by casual visitors. That may be part of the demand, but in our experience there is also demand by more regular visitors such as cleaners, carers, tradespersons and the like. We consider this type of visitor is often overlooked in discussions about reducing or waiving visitor parking.
    3. Given that there is a surplus of spaces for residents we require four spaces to be set aside for visitors or perhaps more correctly identified as being for 'non-residents'. We do not have any specific requirements on how these spaces could be managed or made available and would not include a condition concerning a car parking management plan if a permit is eventually granted. Instead we would be content for the Owners Corporation to manage these spaces as it sees fit. The key point is that these spaces are available for non-residents rather than residents. Our decision means that a permit is not required to waive or reduce on-site parking pursuant to Clause 52.06.
11. We agree with that sentiment and will require an allocation of 3 spaces for residential visitors, which will still provide a surplus beyond the rate in Clause 52.06 and can then be allocated to residents.
12. Clause 52.07 requires provision of a loading bay. Council did not identify this as a specific point in contention or shortcoming, although Mr Walsh discussed loading considerations in part 8 of his evidence statement. We agree with him that deliveries are likely to be relatively minor in nature and that it is acceptable to undertake loading and unloading from kerbside, consistent with loading arrangements in strip commercial centres across the municipality. Although Council did not include a waiver in the draft permit conditions, our decision to support a waiver requires us to include reference to the waiver in the permit preamble.

1. Draft conditions were circulated by Council, and the permit applicant also prepared a tracked changes version. These were all discussed at the end of the hearing. We have made a number of changes/additions to reflect our reasons or in response to comments made at the hearing. Our decision to replace Dwelling 107 with an office results in the development containing 26 dwellings. We have therefore amended the permit preamble to refer to office and not more than 26 dwellings to reflect this change.
2. We have included two conditions requested by Public Transport Victoria and for consistency have changed 'shall' to 'must' and capitalised Responsible Authority. We have also reworded the time limit condition to reflect the wording used by the Tribunal and to include reference to 'use'.

Use of the land for dwellings in Commercial 1 Zone; Buildings and works for the construction of a 4 storey building over basement parking comprising not more than 26 dwellings, food and drink premises (café) and office in Commercial 1 Zone and Design and Development Overlay 16; A reduction in the parking requirement for dwelling visitors, food and drink premises (café) and office in Clause 52.06; Waiver of the loading bay requirement in Clause 52.07 in accordance with endorsed plans.

1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and two (2) copies provided, substantially in accordance with the substituted plans prepared by Plus Architecture (identified as TP099, TP100, TP101, TP102, TP103, TP104, TP200, TP201, TP210, TP211, TP212, 4.01, 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, and 5.01 - all marked revision D and dated 2/3/2016) but further modified to show:

(a) All modifications to the north east corner of the building to ensure that the development does not exceed 12.0 metres (except rooftop plant and equipment as allowed for by Sub-section 2.0 of DDO16), as shown in the 'North Elevation Option' plan prepared by Plus Architecture, dated 31 March 2016, Job No 12016 Drawing No. TP215;

(b) The deletion of Dwelling 107 and its replacement with office floor space setback 3 metres from but at the same level as the Church Street footpath;

(c) The setback of Dwelling 303 from the northern boundary adjacent the multi-storey town house at 1A Simpson Place increased to not less than 7 metres.

(d) The eastern wall of Dwelling 303 setback not less than 19.14 metres from the eastern boundary and the eastern face of the planter on the deck of Dwelling 303 setback not less than 10.298 metres from the eastern boundary.

(e) Deletion of all proposed buildings and works located within 3.0m of the rear boundary where it is adjacent to 2/15 and 3/15 Hill Street with revised architectural and landscape plans to be generally in accordance with the 'Revised Ground Floor Landscape Plan for VCAT' prepared by John Patrick Pty Ltd, dated March 2016, Job No 15-469, Drawing No. VCAT-06;

(f) The provision of a canopy above the Church Street footpath, with a minimum clearance of 3.0m between the underside of the canopy and the footpath;

(g) An amended layout for Dwelling 104 to improve internal amenity, such that the best practice benchmark of a daylight factor greater than 0.5% over 90% of the floor area in the living room is obtained;

(h) If required, screening measures to the south facing bedroom windows in Dwelling 205, and the northern, southern and eastern edges of terraces of Dwellings 103, 203 and 303 to prevent overlooking within 9 metres in accordance with standard B22 of Clause 55. Sightline diagrams are to be provided demonstrating compliance with standard B22;

(i) The introduction of creative measures to enhance the quality and amenity of the corridors, such as reflective mirrors, high quality finishes and artwork, or a combination of these measures;

(j) Enlarged plans at a scale of 1:50 of the booster cupboard doors, car park entry, residential entry and the screening surrounding the rooftop plant, showing the materials, finishes and colours. The selected materials must be to a high quality and integrated with the development;

(k) The application of a graffiti-resistant coating to all ground level non-glazed finishes facing Church Street and Simpson Place;

(l) Modifications to the schedule of materials and finishes to detail the proposed ground surface material for the Church Street and Simpson Place front setbacks that are publicly accessible;

(m) Modifications to the schedule of materials and finishes to provide further details of the type and finish of the metal to be used (represented by M1, M2, M3);

(n) A schedule of materials and finishes, including physical samples of all timber, metal, glazing and render finishes. The schedule must include details of the size and format of the various materials. The materials selected must demonstrate the visual effect and high quality of the development;

(o) Any modifications recommended to the development made in the ESD report required by this permit;

(p) Details of air conditioning to the dwellings;

(q) The setback in front of the food and drink premises (café) and office to be resurfaced with asphalt and bluestone banding with finished surface levels that are generally in accordance with the existing levels of the adjacent footpath;

(r) A notation that harvested rainwater will be re-used for irrigation of all landscaped areas;

(s) The allocation of three (3) car spaces for use by dwelling visitors;

(t) The allocation of one (1) car space to the food and drink premises (café);

(u) The allocation of two (2) car spaces to the office;

(v) Egress from the development restricted to left-out only through the installation of physical traffic treatments and/or signs;

(w) A notation that all pairs of tandem car parking spaces will be allocated as a pair to a single dwelling and/or commercial tenancy;

(x) Details of the allocation of car parking in accordance with any condition in this permit;

(y) The provision of signage in accordance with Clause 52.34-5 that directs cyclists to the proposed bicycle facilities and a schedule of the signs required;

(z) Correction to the numbering of the car spaces accurately reflect that 54 car spaces are proposed;

(aa) A regrading of the egress ramp to Simpson Place such that it is 1 in 10 for 5 metres, 1 in 4.5 for 2 metres, 1 in 4 for 5.3 metres and 1 in 8 for 2.6 metres (in accordance with section 6.4.1 of the VCAT evidence of Mr Jason Walsh of Traffix Group, dated 17 March 2016);

(bb) A regrading of the internal ramp such that it is 1 in 8 for 2 metres, 1 in 4.4 for 9.5 metres and 1 in 8 for 2.6 metres, and to splay the kerb to improve accessibility around corners and improve passing opportunities at the upper and lower levels on the ramp (in accordance with section 6.4.1 of the VCAT evidence of Mr Jason Walsh of Traffix Group, dated 17 March 2016);

(cc) Details of all car park control equipment;

(dd) A notation that all landscaping located within the pedestrian sightline triangles adjacent to Simpson Place must be not higher than 900mm.

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

1. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.

1. Written confirmation by a Licensed Land Surveyor must be provided to the Responsible Authority verifying that the development does not exceed 12.0 metres in height above natural ground level (except for rooftop plant and equipment as allowed for by Sub-section 2.0 of DDO16). This must be provided:
   • (a) Within seven (7) days following the frame stage inspection;
   • (b) Within seven (7) days following the final inspection.
2. In the event of the frame stage or final inspection revealing that the building height exceeds 12.0m, all necessary steps must be taken prior to the occupation of the building to ensure the development does not exceed the maximum overall building height allowed by DDO16 to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of any plans pursuant to Condition 1, a Landscape Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plan must be drawn to scale with dimensions and three (3) copies provided. When endorsed, the plan will form part of the permit. The landscape plan must be generally in accordance with the landscape concept plan considered by the Tribunal (Job No. 15-469, Drawing Nos. L/VCAT01-04, dated March 2016 prepared by John Patrick Pty Ltd), except that the plan must show:
   • (a) Further details of all proposed paving finishes;
   • (b) Details of planting within all landscape beds and planter boxes within the development;
   • (c) A planting schedule of all proposed trees, shrubs and ground covers including botanical names, common names, pot sizes, sizes at maturity and the quantities of each plant;
   • (d) The replacement of the Fastigiate Pin Oak and Orange Jessamine along the boundary of 15 Hill Street with other species with a mature height of approximately 2 metres;
   • (e) The replacement of the Blueberry Ash trees along the southern boundary with Southworth Dancer Ornamental Pears;
   • (f) Landscaping required by any other condition of this permit;
   • (g) Provision of an irrigation system within all planted areas of the site (including all balcony planter boxes) that utilises rainwater harvested and stored on-site, with mains backup.

1. Landscaping as shown on the endorsed landscape plans must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

1. All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of any plans pursuant to Condition 1, a Waste Management Plan, generally in accordance with the Waste Management Plan submitted with the application (dated 12 February 2015, prepared by Leigh Design) but updated to reflect the approved number of dwellings, must be prepared to the satisfaction of the Responsible Authority and submitted to the Responsible Authority for approval. Once approved, such Plan must be implemented and complied with at all times to the satisfaction of the Responsible Authority.

Hours for collection of residential and commercial waste

1. Collection of residential and commercial waste must be conducted so as not to cause any unreasonable disturbance to nearby residential properties and may only take place during the following times:
   • (a) Monday to Friday: 7:00am to 7:00pm (excluding commuter peak periods);
   • (b) Saturday & Public Holidays: 9:00am to 7:00pm;
   • (c) Sunday: No collection allowed;

to the satisfaction of the Responsible Authority.

1. Prior to the commencement of construction of the building hereby approved:
   • (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970; or
   • (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for a sensitive use.
2. Notwithstanding the provisions of condition 11, the following works can be carried out before any necessary Statement of Environmental Audit or a Certificate of Environmental Audit is provided to the Responsible Authority under Condition 11:
   • (a) Buildings and works that necessarily form part of the Environmental Audit process; and
   • (b) Buildings and works that the Environmental Auditor engaged by the owners advises must be carried out before a Statement or Certificate of Environmental Audit can be issued.
3. Buildings and works carried out before any necessary Statement of Environmental Audit or a Certificate of Environmental Audit is provided to the Responsible Authority must be carried out in accordance with the Works Plan approved by the Environmental Auditor engaged by the owner. A copy of the Works Plan must be provided to the Responsible Authority before the commencement of the buildings and works for the purposes of this condition. For the avoidance of doubt, a Works Plan is not required for demolition;
4. Before the construction of the building hereby approved commences (excluding buildings and works carried out in accordance with a Works Plan approved by the Environmental Auditor engaged by the owner), a copy of any necessary certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
5. The development and use allowed by this permit must comply with the directions and conditions of any Statement of Environmental Audit issued for the land.
6. Prior to the occupation of the dwellings, a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.
7. Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirements of the Environment Protection Authority and the Environment Protection Act 1970.

1. Underground infrastructure connections, including electricity, must be available to each premises shown on the endorsed plans before any premises can be occupied, to the satisfaction of the Responsible Authority.

Driveways and Car Parking areas to be constructed

1. Before the use starts the areas set aside for car parking, access lanes and driveways shown on the endorsed plans must be:
   • (a) Constructed;
   • (b) Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;
   • (c) Surfaced with an all-weather seal coat;
   • (d) Line-marked to indicate each car space and clearly marked to show the direction of traffic along the access lanes and driveways; and
   • (e) Drained;

to the satisfaction of the Responsible Authority.

1. Car spaces, access lanes and driveways shown on the endorsed plan must not be used for any other purpose and may be used by occupants of or visitors to the site to the satisfaction of the Responsible Authority.
2. All vehicles entering and exiting the car park must do so in a forwards direction.

1. A minimum of 54 car parking spaces must be provided on the land, with car parking spaces allocated in the following manner:
   • (a) Dwelling residents: a minimum of:
     • (i) 1-bedroom dwellings: 1 car space per dwelling;
     • (ii) 2-bedroom dwellings: 1 car space per dwelling;
     • (iii) 3-bedroom dwellings: 2 car spaces per dwelling;
   • (b) Food and drink premises (café): a minimum of one (1) car space;
   • (c) Office; a minimum of two (2) car spaces;
   • (d) Dwelling visitors: a minimum of three (3) car spaces.

1. Visitor parking spaces within the development must be:
   • (a) Clearly identified by appropriate signage having an area no greater than 0.3m2;
   • (b) Line marked to indicate each car space; and
   • (c) Available for visitor usage in accordance with the times/days required by this permit.
2. All signs, mirrors, line marking and traffic control equipment must be installed prior to the occupation of the building and maintained to the satisfaction of the Responsible Authority.

1. Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the Responsible Authority.

1. All disused or redundant vehicle crossovers must be removed and the area reinstated with footpath, kerb and channel to the satisfaction of the Responsible Authority.

1. All outdoor lighting of publicly accessible areas must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

1. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

1. The development must be drained to the satisfaction of the Responsible Authority.

1. The external faces of walls on or facing boundaries are to be cleaned and finished to the same standard as such walls within the development site to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of any plans pursuant to Condition 1, an Environmentally Sustainable Design (ESD) Report must be submitted which is to the satisfaction of the Responsible Authority. The report must be prepared by a suitably qualified expert and submitted to the Responsible Authority for approval. The report must be generally in accordance with the Sustainability Management Plan prepared by Lucid Consulting Australia dated 14 September 2015 and must address ESD principles proposed for the site including, but not limited to, energy efficiency, stormwater collection and re-use for landscape irrigation, waste and building materials. Any recommended changes to the building must be incorporated into the plans required by Condition 1. Once approved, such a plan must be implemented prior to the occupation of the development and maintained to the satisfaction of the Responsible Authority.

1. Prior to the commencement of any site works, including demolition and excavation, a Construction Management Plan must be submitted to and endorsed by the Responsible Authority. No works are permitted to occur until the Plan has been endorsed by the Responsible Authority. Once endorsed, the construction management plan will form part of the permit and must be implemented to the satisfaction of the Responsible Authority. The plan must be prepared in accordance with Council's Construction Management Plan Template and provide details of the following:
   • (a) Hours for construction activity in accordance with any other condition of this permit;
   • (b) Measures to ensure that all construction and subcontractors are aware of the obligations with respect to the trees to be retained and the obligations under the Tree Management Plan required by this Permit;
   • (c) Measures to control noise, dust, water and sediment laden runoff;
   • (d) Measures relating to removal of hazardous or dangerous material from the site, where applicable;
   • (e) A plan showing the location of parking areas for construction and sub-contractors' vehicles on and surrounding the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises. Any basement car park on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay;
   • (f) A Traffic Management Plan showing truck routes to and from the site. Unless agreed in writing with the Responsible Authority, all demolition and construction vehicles are to avoid using the laneway off Hill Street to access the site;
   • (g) Swept path analysis demonstrating the ability for trucks to enter and exit the site in a safe manner for the largest anticipated truck associated with the construction;
   • (h) A plan showing the location and design of a vehicle wash-down bay for construction vehicles on the site;
   • (i) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
   • (j) Contact details of key construction site staff;
   • (k) A site plan showing the location of any site sheds, on-site amenities, building waste storage and the like, noting that Council does not support the siting of site sheds within Council road reserves; and
   • (l) Any other relevant matters, including the requirements of VicRoads and Yarra Trams.

1. All works including earthworks, demolition and construction activity associated with the approved development must take place only during the following hours, except with the prior written consent of the Responsible Authority:
   • (a) Monday to Thursday: 7:00am to 6:30pm
   • (b) Friday: 7:00am to 5:00pm
   • (c) Saturday: 9:00am to 5:00pm
   • (d) Sunday & Public Holidays: No construction

1. The amenity of the area must not be adversely affected by the use and development as a result of the:
   • (a) Transport of materials, goods or commodities to or from the land; and/or
   • (b) Appearance of any building, works, stored goods or materials; and/or
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, ash, dust, waste water, waste products, grit or oil; and/or
   • (d) The presence of vermin.

1. The permit holder must take all reasonable steps to ensure that disruption to tram operation along Church Street is kept to a minimum during the construction of the development. Foreseen disruptions to tram operations during construction and mitigation measures must be communicated to Yarra Trams and Public Transport Victoria fourteen (14) days prior.
2. The permit holder must ensure that all track, tram and overhead infrastructure is not damaged. Any damage to public transport infrastructure must be rectified to the satisfaction of Public Transport Victoria at the full cost of the permit holder.

1. This Permit will expire if:
   • (a) The development does not start within two (2) years of the issue date of this Permit; or
   • (b) The development is not completed within four (4) years of the issue date of this Permit.
   • (c) The use does not commence within two (2) years after the completion of the development.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. We do not recite or refer to all of the contents of those documents in these reasons.

[2] Mrocki v Bayside CC (Includes Summary) (Red Dot) [2015] VCAT 1731.

[3] For example see Benedetti v Moonee Valley CC [2005] VCAT 1580 at [34].

[4] Plan Melbourne: Metropolitan Planning Strategy (Department of Transport, Planning and Local Infrastructure, 2014).

[6] For example, Clauses 11.01 and 11.04.

[7] Kenik Pty Ltd v Stonnington CC [2014] VCAT 518.