Council argued, relying on its urban design expert, that the building could be built to all site boundaries but limited to 15-16 storeys height.

We concluded that, because of other equally or taller buildings that are or will be built in the site's locality, that the height is acceptable and that for a number of reasons we considered that the lack of tower-podium typology was acceptable. Our reasons for this conclusion were that the site's development opportunity should not be sterilised by the adjoining small site, the lack of tower above a podium would not prejudice the amenity of pedestrians and any adverse wind conditions could be appropriately managed.

Melbourne Planning Scheme; Application pursuant to Section 77 of the Planning and Environment Act 1987; Capital City Zone; 35 storey building; 154 dwellings; Height; Setbacks; Tower/podium; Balconies.

CK Designworks v Melbourne CC [2011] VCAT 584

1. The decision of the Responsible Authority is set aside.
2. In permit application TP-2009-1155 a permit is granted and directed to be issued for the land at 276-284 Russell Street, Melbourne. The permit will allow:
   • Demolition of the existing building
   • Construction of a 35 storey building
   • Waiver of loading bay requirements

in accordance with the endorsed plans and subject to the permit conditions set out in the Appendix.

Mr Phil Bisset, Solicitor of Minter Ellison Lawyers. Expert written and oral evidence provided by:

• Mr Alan Wyatt, Landscape Architect of ERM Australia Pty Ltd.
• Mr Andrew Hutson, Architect.
• Mr Tony Rofail, Wind Engineering Consultant of Windtech Consultants Pty Ltd.
• Mr David Crowder, Town Planner of Ratio Consultants Pty Ltd.

Ms Sarah Porritt, Barrister instructed by Ms Brigid Ryan, Corporate Solicitor of Melbourne City Council. Expert written and oral evidence provided by Mr Christopher Pryor, Senior Urban Designer, City of Melbourne.

Construction of a 35-storey building, built to all site boundaries.

Section 77 Planning and Environment Act 1987.

Cl. 37.04-4 (demolition and buildings and works in CCZ1).

We jointly inspected the review site and the locality on the morning of the second day of the hearing, as well as singly on other occasions prior to and during the hearing.

The review site is located on the south eastern corner of Russell and Little Lonsdale Streets. Its shape is almost square; it has an area of 383.3m2 and has frontages to Russell Street to the west, Little Lonsdale Street to the north and Hayward Lane to the east. To the south it abuts a row of two-storey commercial buildings.

Land on the opposite side of Russell Street forms part of the QV complex, rising to a height of 52 floors. Land to the east, on the opposite side of Hayward Lane, is occupied by an 8-storey multi level car park. Land on the north side of Little Lonsdale Street comprises a row of two and three storey mixed use buildings.

The immediate locality is perhaps typical of inner city Melbourne with a great variety of building styles, building heights and land uses, with the older built form being replaced by much more intensive newer development.

1. CK Designworks has designed and applied for a permit to construct a building with shops on the ground floor, offices on the next 3 levels and 154 dwellings on the upper floors. A basement will contain bicycle parking and various services and plant. A 'mezzanine' floor above part of the retail level will contain further plant and plant rooms will also be located above the top residential level. Five of the upper floors, at evenly spaced intervals and on different elevations, are to contain large, well-landscaped communal gardens ("hanging gardens") within the floor plan. There will be two landscaped, private balconies at the top residential (penthouse) level. Above each of the communal balconies, the next five floors are to be progressively raked back as they descend towards the balcony garden. In addition to the hanging gardens, there will be small, triangular balconies scattered in a deliberately random pattern across the three residential façades.
2. Council has refused to grant this permit and CK Designworks has applied for a review of Council's decision.
3. Council refused to grant a permit on various grounds relating largely to the building's form. From these grounds and the various submissions and evidence we consider that the determinative issues are encapsulated by the following questions:
   • Is the building too high for a site that is too small to provide upper-level setbacks above a lower-level podium?
   • Are the projecting balconies detrimental to the public space?
   • Would the building unfairly restrict the development potential of nearby sites or lead to an inevitable wall of towers along Russell Street?
   • Is the relatively blank southern wall acceptable?
   • Would the building cause unreasonable wind gusts at ground level?
   • Should the building include loading bays?
   • How to ensure that the constructed building achieves a high quality outcome?
4. We have concluded that the building would provide an innovative architectural contribution to the City, that its height is acceptable and that in the circumstances of its design and location, it is acceptable that it not include upper-level setbacks; also, that other contested aspects of its design are reasonable.

1. Council submitted that the combination of the proposal's height and lack of upper-level setbacks failed to comply with policy and would overwhelm the pedestrian experience, contending instead that it should be limited to 14 storeys. We have concluded that the building's height and form are acceptable.
2. Council relied on the evidence of its urban design expert, Mr Pryor, who interpreted policy to conclude that the proposal's combination of height and lack of podium would result in an excessive density and an unacceptably overbearing presence for pedestrians.
3. There are several strategies and policies relevant to this matter. Table 4 to Clause 21.05 identifies, by default, the site's locality as one where "substantial built form change is envisaged" and seeks to ensure appropriate spacing and offsetting of tall buildings. Clause 21.08-1 supports residential accommodation for a diverse population in an area of increased development intensity and mixed uses.
4. The objectives of Clause 22.01 include emphasising street corners and maintaining the "traditional and characteristic vertical rhythm" of the streetscapes. Policies of Clause 22.01 require building forms based on towers above podiums: podiums may be 35-40 metres in height and, above that, towers should be setback 10 metres from street frontages, with other setbacks required to ensure spacing between towers. Clause 22.01 also requires all development in any City block to not exceed, without justification, a plot ratio of 12:1[1]. We later discuss other aspects of this policy such as projections, wind and weather protection.
5. Clause 22.20 identifies Hayward Lane as a Class 3 lane, based on the absence of two or more of the four core values of lanes: through-block connectivity; active frontages; elevational articulation and views to other connecting lanes, streets or landmarks. Class 3 laneways "generally provide vehicular access to the rear of buildings for ... service requirements ...". In our view, this is very much the character of Hayward Lane. Policies seek to improve lanes generally [i.e. "encourage (Class 2 and 3 laneways) to show signs of Class 1 lanes"] and to use upper-level setbacks so that the lanes "have a sense of openness that reinforces a human scale".
6. Mr Pryor agreed that the effect of the policies, including ones relating to the spacing between adjoining towers, would effectively preclude any tower on this site, leaving only the podium level. However, he conceded that a building of 48 metres height[2] would be acceptable because of the proposal's innovative design (the 'hanging' gardens), the mitigating effect of these gardens' recesses, the preservation of the streetscape grain and the proposed ESD initiatives.
7. Leaving aside the question of whether the upper levels should be set back, we see no 'in-principle' reason to reject the building's height. There are several actual or approved buildings of almost the same or greater height within one block of the site: the 39 storey BHP building, corner of Lonsdale and Russell Streets; the 52 storey QV building across Russell Street; the 29 storeys of Celsius House, north-eastern corner of Hayward Lane and Lonsdale Street; an approved 50 storey building at 302 Russell Street; the Rockman's Apartments, of 33 storeys at 285 Exhibition Street and two buildings of 28 and 21 storeys to the site's east, in Little Lonsdale Street on the corners of Exploration Lane and Jones Lane respectively. Some of these buildings have podiums to some of their street frontages while other frontages or buildings do not. In the company of these buildings, the proposal's height would be a good fit.
8. Moreover, the relevant policies in Clause 22.01 are quite neutral on building height in the site's locality. The Planning Scheme provides neither encouragement for nor discouragement of taller buildings in this location. Strategies of Clause 21.08-1 merely seek to ensure that there is a strong distinction between the height of buildings in the CCZ1 and those in surrounding areas[3]. While we were referred to the DDOs of the Docklands area as reflecting a positive encouragement for height in that locality (and hence, we were told, the absence of such controls argued against high buildings on the subject site), it seems to us that those DDOs are designed to limit heights that might otherwise, in that locality, be even greater.
9. We endorse Mr Hutson's opinion that in views along Russell Street the proposed building would provide a reasonable visual foil to the taller and bulkier QV building almost opposite.
10. The question then becomes this: should the building be extended above 48 metres height, given that it cannot be effectively set back at its upper levels?
11. Relevant objectives are set out in Clause 22.01 and, as is usually the case, are understandably but unhelpfully vague, referring only to a building "establishing its own identity", having "sensitive and innovative design", taking account of "the experience ... for pedestrians" and reflecting "appropriate design standards" for public spaces, buildings and circulation spaces. In order to achieve these objectives, Council has framed many policies, many of which seem to us to be self-evident or uncontentious, e.g. buildings are to emphasise street corners, are to repeat the existing vertical rhythm of streetscapes, are to address both street frontages (if relevant), are to maintain important views. However, of particular relevance is Council's adoption of a 'tower-podium' typology that applies to all taller buildings on all street frontages.
12. The question of a policy requiring a tower-podium typology for all taller buildings was considered by the Tribunal in the Peddlethorp Architects decision[4], relating to the property at 113-115 Little Lonsdale Street. In its decision, the Tribunal observed:

[14] We acknowledge the policy support for the podium - tower building typology contained within the planning scheme. This building typology however is not the only typology which can be contemplated for every site within the central city. The objective of creating or maintaining pedestrian amenity ... (is) ... capable of being achieved without relying on the use of podiums. The discretion available under the planning scheme ... and the policy framework reflects the reality that not all towers require a podium treatment. Objective 2.2 of the Guidelines for High Density Residential Development does advocate the use of setbacks and podium treatments, but it also states that taller buildings without a podium level create a dramatic urban form and this may be appropriate on some sites where the local context can support this approach. The context of this site allows such an approach to be taken.

1. We conclude that the same circumstances apply in this case and endorse the above opinion for the following reasons:
   • The lower four levels of the building are to be treated in ways that differentiate them clearly from the upper levels and provide a more visually interesting elevation closer to the pedestrians' level.
   • The building, with its innovative concept of the five hanging gardens, will create a dramatic element on this corner and, although it is not a corner of the same significance as the major City intersections, it will nevertheless provide good views of the building from close to middle distance along Russell Street and the hanging gardens will introduce a striking visual element that would potentially lift this building's contribution to the streetscape well above those around it.
   • The lack of podium setback above 40 metres would, we believe, have no effect on nearby pedestrians and, in the context of a number of nearby tall buildings with little on no podium setbacks (existing or approved), provision of a podium or truncation of this building at 48 metres height would be, in our opinion, of little benefit.
   • There are a notable number of nearby tall buildings that do not (or approved buildings that will not) have a podium on one or other street frontage, so that there is no clearly emerging building form of the podium-tower typology in this locality.
   • Hayward Lane[5] presently has no desirable pedestrian qualities and the Celsius building, to the south, is a tall building with no podium to the lane; in any case, we do not believe that a pedestrian nearby in this lane would be able to differentiate between the proposed building and the 48-metre alternative.
2. We have great difficulty relating the policy allowing podiums to 35-40 metres, or Mr Pryor's concession of 48 metres height, with anything approaching a human scale. As we were advised during the hearing, this podium level was a continuation of the historic 132 ft building height that applied prior to the planning schemes[6]. It seems to us that such a podium height may create an attractive urban form if applied consistently in wide boulevards but we find it difficult to understand why it is considered to have any relationship with the human scale[7].
3. We also reject Mr Pryor's view that the 5:1 height-to-width ratio that applies to Class 1 and 2 lanes is a useful benchmark for assessing this proposal's effect on Hayward Lane. Mr Pryor considered a 48-metre high building without further setbacks to be acceptable. From the point of view of pedestrians using Hayward Lane, we believe that there would not be any noticeable difference between a 48-metre high building and this one. In both cases, the building would tower so much above a pedestrian's view that any perceived difference would be immaterial.
4. We accept Mr Hutson's view that, given other aspects of the building's design, there would not be any benefits to pedestrians if the building could be set back above the 40 (or 48 metres) height. While the lowest hanging garden would not provide the effect of a podium with set back tower[8], we do believe that the architectural treatment of the elevations below the residential level will provide an important visual differentiation of the lower elevations.
5. For several reasons we also place no weight on the policy seeking to limit the plot ratio of individual City blocks to 12:1, in part because of its clear lack of current enforceability and in part because of a lack of any apparent nexus between the height of buildings on any site and overall urban form outcomes. In some respects, this policy is similar to the control that planning schemes apply to retail floor space in business zones, where a schedule to the zone can limit the total retail floor space in a retail centre to a specified total. This leads to a first-come-first-served situation as early-mover owners can increase their floor space towards the cap at the expense of others who might delay action. Any such control or policy requires the Council to monitor the growing retail floor space. That action is missing in this case, as Council was not able to specify what the current development plot ratio for this block is, let alone how this proposal would affect it.
6. Furthermore, if the desired plot ratio is an average that is applied across the whole block, then one would expect some sites to exceed the desired ratio while the development of others would be less. The fact of this proposal exceeding the 12:1 ratio is therefore, of itself, irrelevant.
7. Finally, as noted above, we cannot see any clear nexus between this plot-ratio policy and any of the objectives of Clause 22.01.

1. Council argued that the small projecting balconies would exacerbate the building's overbearing presence. We have concluded that the balconies, due to their small scale and great height above the street, are both acceptable and beneficial to the overall design.
2. The balconies are small triangular devices, projecting 1.5 metres from the building's face, with a base of 2.2 metres and an area of 3 square metres. The architects have placed the balconies in an apparent random pattern across the three façades so that some dwellings have one, a few have two and some have none. Some balconies open off living rooms while others adjoin bedrooms. The lowest balconies are about 27 metres above street level. Mr Wyatt advised us that the balconies have an important function in collecting water from the building's façade, thereby assisting in the building's overall rainwater self-sufficiency[9].
3. Clause 22.01 is relevant. It contains a section dealing with projections over streets. The relevant policy states that proposed projections should be assessed against various design standards, including, importantly, this one:
   • Open balconies, canopies, projecting cornices or other building elements should not overhang the lane unless they:
     • ­ Follow a local pattern
     • ­ Contribute positively to the character and safety of public spaces
     • ­ Are discreet rather than prevailing elements of a building's design
     • ­ Provide evidence of the building's occupation.
4. Mr Pryor considered that the balconies would be acceptable if at least partly recessed. He also considered that, with some reduction in their proportional numbers, they would be acceptable on the lower building that he had supported because their cumulative impact would then be less.
5. Mr Crowder proposed that the location of private balconies should be modified to ensure that they would always adjoin living rooms. We are not so persuaded.
6. It is clear that the balconies' placement is part of building's façade treatment, as their deliberately random pattern would create further visual interest across the building's façades.
7. We had difficulty in applying the four tests for projecting balconies in Clause 22.01[10]. Clearly, the proposed balconies do not fit a prevailing pattern, but then there are no examples, to our knowledge, of a prevailing balcony pattern in high rise buildings and this is to be expected, given the individuality of architectural treatments of such buildings. The balconies are too high to contribute to public safety and, in our view, would rarely if ever be occupied. We had great difficulty understanding how to apply the concepts of 'discrete' and 'prevailing' to any balconies. They would certainly indicate the residential nature of the occupancy of the upper levels.
8. With respect to the apparent randomness of the balconies' disposition across the three façades, we consider that this randomness, combined with the large number of balconies, actually creates a valuable degree of visual tension, and thereby greater visual interest, than could be ever achieved by placing them in a regular pattern. Rather, we view the visual effect of the balconies as a worthwhile, three-dimensional aspect of the building's façade and commend them for that.
9. We do not accept that the private balconies would be oppressive to pedestrians close to the building. In our view, pedestrians close to the building will not be aware of small balconies so far above, let alone feeling oppressed by them, and these balconies are so small that, to pedestrians further away, they will simply appear as part of the façade treatment.
10. We also do not agree with the suggestion that all balconies should be relocated to abut living rooms. If this is important, then all living rooms should be provided with balconies. On such a tall building, and with such small balconies, we do not consider that they would extend the dwellings' liveability to any useful extent.
11. We therefore conclude that the balconies provide useful support for sustainability principles, add significantly to the visual quality of the building's façades and would not have any detrimental effects for pedestrians.

Would the building unfairly restrict the development potential of nearby sites or lead to an inevitable wall of towers along Russell Street?

1. Council submitted that the proposal, if emulated on the adjoining site to the south, would either be unfair to the adjoining owner, or lead to a "wall of buildings" along Russell Street. We have rejected this view in favour of a first-come-first-served approach to apportioning available development opportunities.
2. There is a row of six small-frontage lots extending southwards from the subject site almost to Lonsdale Street, with frontages varying slightly upwards from about 5 metres. Council hypothesised that in the event of this building's construction, it would be either unfair to oblige an adjoining owner to achieve the entire required setback for a tower from the subject site, or there would be a wall of towers along Russell Street.
3. In the Brady Lonsdale case[11], the Tribunal considered a similar situation, where approval of one tall building would potentially preclude the construction of a similar tall building on the adjoining site. The Tribunal observed:

[23] How then should we regard this guideline in relation to building separation when considering the impact of a proposal on the future development potential of adjoining land, when both the subject land and the adjoining land are relatively small lots? On balance we think that the guidelines should be applied in respect of existing development, in other words it is really a first come first served consideration. The alternative approach would be that neither site can be developed, because the development of one would always prevent the development of the other.

[24] When the guideline is applied as we suggest if a tower building is approved on one small lot, the decision maker considering the redevelopment of an adjoining lot at some future date, would have to decide:

1. whether or not it would be inappropriate to allow another tower building on the adjoining lot having regard to the guideline in respect of the separation of towers, or;
2. whether or not it would be appropriate to allow a reduced setback between towers;

1. The same situation applies here. By applying an unquestioning adherence to the letter of policy, a tall building on either this or the adjoining site to the south would preclude a similar building on the other site, whereas if we grant this permit to the first-mover then at least one tower would exist. The alternative is that each site would blight the other. We do not consider this an appropriate interpretation of policy in a context where policy also supports an intensification of land use.
2. The same issue applies to the site to the east, presently occupied by a multi-level car park. This site has a much larger frontage to Little Latrobe Street, so that that in some respects this question is less critical; any design of a development of, or above, the carpark would face fewer constraints in terms of a tower's setbacks or offsets from this proposal.
3. We therefore conclude that it would be acceptable to allow the proposed building notwithstanding its juxtaposition to an adjoining small site and without any upper level setbacks from the site across Hayward Lane.

1. Council objected to the proposed southern elevation, which will be largely blank other than for a raised patterning, on the ground that this elevation would lack visual interest. We conclude that subject to achieving an appropriate design, the southern wall can be quite sufficiently interesting to be acceptable.
2. The adjoining site to the south could potentially be redeveloped by itself or as part of an amalgamation of other sites to its south. The proposed building's southern elevation is to have a vertical recess ("cut out") in its centre, which will provide light to adjoining second bedrooms or bathrooms. The solid elevation to either side is to have a geometric pattern. This pattern would be slightly three-dimensional and be given colouring and further character with applied materials. We were shown examples of equivalent wall patterns on other buildings here and overseas. We were also advised that the shallow three-dimensional quality of the southern façade would allow it to incorporate water-catching channels to further support the building's ESD qualities.
3. Bedrooms adjoining the cut-out will also be provided with secondary access to light and ventilation, so that in the event of a future development abutting the southern elevation, they would still enjoy adequate access to light and ventilation. Because of the possibility that the cut out may be eventually built out, we agree with Mr Crowder that the fire rated windows be used in this location. We also agree with him that there needs to be a separate agreement regarding possible future construction on the adjoining site, so that owners are aware that the windows may be built over at some future time.
4. We note that the 'mural' on the southern elevation was critical to Mr Hutson's support for the proposal, though he agreed that there could be many acceptable solutions to the design of an appropriate mural. It seems to us that this wall offers the opportunity for a quite exciting piece of urban art.
5. We conclude that, subject to an appropriate mural treatment on the southern elevation, the lack of an in-the-round quality to the building is not critical. However, the quality of such a mural is critical and we have included a condition requiring any such mural to be subject to the satisfaction of Council.

Would the proposed building cause unreasonable wind conditions at ground level?

1. Council contended that the building's design would result in untenable wind speeds at ground level and that the proponent had failed to demonstrate that these effects could be adequately mitigated. We accept that, subject to appropriate changes to the system of verandahs at the lower levels, the proposal will ensure an acceptable wind environment.
2. The Planning Scheme recognises the need to provide a pedestrian environment that is free of unwanted or excessive winds[12] and the parties agreed on the need to design this building so that it would provide an acceptable wind environment.
3. Mr Rofail, of Windtech, had undertaken a detailed wind tunnel analysis of the proposed building. In summary, his analysis showed:

... the current wind conditions for the majority of the surrounding footpaths without the inclusion of existing trees will exceed the recommended Comfortable Walking Criterion for the weekly maximum GEM[13] wind speeds. Some areas also currently exceed the safety limit for the annual maximum gust wind speeds.

1. Mr. Rofail concluded that the unmodified proposal would have no effect on the existing wind environment other than for a slight increase in wind speed at the site's southwestern corner.
2. Mr Rofail proposed that the slight increase in wind speed be mitigated by modifying the profile of the proposed awning over Little Lonsdale Street and adding an additional awning to the same façade. He also recommended additional vertical wind screening to some of the landscaped communal balconies and the more exposed of the private balconies. There would be two effects of these changes: the canted section of awning at the western end of the Little Lonsdale Street façade would be changed to vertical and horizontal sections; a second, 3-metre wide awning would be introduced at a height of between 4 and 5 metres across the width of this same façade (i.e. about mid-height below the existing proposed awning).
3. Mr Hutson considered that Mr Rofail's proposed changes to the awnings were acceptable in terms of the building's urban design.
4. Council had commissioned a separate, limited analysis of the proposal's effect on wind at the point where the wind effect might be the most severe and had not been able to confirm Mr Rofail's findings[14]. Council provided no evidence about this research and we have not taken it into account.
5. Based on Mr Rofail's evidence we conclude, subject to appropriate modifications to the awnings and screens, that the residents of the building and pedestrians passing by can be assured of acceptable wind conditions.

1. One of Council's grounds of refusal related to the lack of an on-site loading bay. We conclude that the development does not require such a facility.
2. Clause 52.07 requires that retail uses are provided with appropriate loading bays, though a permit may be granted to waive this requirement. Council's officer's report did not suggest any need for a retail-related loading bay but, rather, emphasised the need for a loading bay to accommodate the requirements of residential tenants moving furniture in or out of the building. The report noted that although there are kerbside loading bays nearby, they are heavily used.
3. Council did not address this issue in its submission.
4. Mr Bisset submitted that there are adequate loading bays in the site's vicinity (and enumerated their location), arguing that Council was only concerned with loading facilities for residents and that the proposed ground-floor retail premises will largely replace those in the existing building, which also has no loading bays.
5. Mr Bisset also pointed out that, subject to a fee, Council will allow residents to reserve kerb-side parking spaces for temporary use as loading bays.
6. While an on-site loading bay would be advantageous, we do not consider that the absence of such a facility is a reason to refuse a permit for this proposal.

How to ensure that the constructed building achieves a high quality outcome?

1. The proposed building was presented to us as being of high quality design and finishes and as having a unique design feature in the form of the 5 in-set, communal hanging gardens at different elevations above ground level. We accept these assurances and consider that they contribute importantly to this proposal's acceptability.
2. During the hearing, parties expressed the view that the final quality of the constructed building, and the hanging gardens, were critical to its acceptability. We agree and urge Council to only endorse final plans that achieve a similar high standard of design and built form outcome to the ones shown on the plans before us.
3. The proposal includes 5 large, well-landscaped communal gardens of between about 110 and 206 square metres and two large private rooftop gardens of about 66 square metres each (what we have referred to as "hanging gardens"). We understand that this design feature is unique to Melbourne and possibly Australia. Mr Bisset also assured us of the intended high quality of the building's detailing and finishes (e.g. the quality of the southern wall's mural). We consider that both of these aspects of the proposal are essential to a successful outcome and we have considered them in concluding that there would be a net community benefit from this proposal.
4. Mr Hutson also agreed, in cross-examination, that the greening of the building was critical to his support. Mr Wyatt explained in some detail how he had designed the gardens' landscaping to take account of the environmental and management requirements of their unusual location.

1. In assessing Council's draft permit conditions we have made a number of changes to reflect submissions and discussion about them at the hearing. In particular, we have included a condition requiring a retesting of wind effects following the various proposed design changes and deleted some words of the environmental audit conditions.
2. We agree to delete the permit condition relating to provision of a proportion of dwellings as social housing. Council did not argue this matter before us and provided us with no serious justification for this requirement.
3. We have added a condition relating to improved light to the inner rooms of Unit 4.02, in the eventuality that the second bedroom may require secondary light. We have also added an ESD condition.
4. In light of the importance to our acceptance of this building, we have added two additional conditions: one relating to the design of the southern wall's mural, the other requiring engagement, to the satisfaction of the responsible authority, of a suitably qualified architect and landscape architect to oversee relevant aspects of the development.
5. We have made other, minor changes to wording to ensure reasonable flexibility on the final design and in the staging of the design and development processes.
6. We have deleted the 'notes' as these can be included as an attachment or covering letter to the permit.

1. Having regard to the above we will set aside Council's decision and direct that a permit issue subject to the conditions set out in the Appendix.

Demolition of the existing building, construction of a 35 storey building and waiver of loading bay requirements in accordance with the endorsed plans.

1. Prior to the commencement of any demolition, bulk excavation, construction or carrying out of works on the land, the applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans accompanying the amended application but amended to show:
   • (a) Modifications required to the development in order to ensure acceptable wind conditions to the surrounding streets and public areas recommended as a result of the wind tunnel modelling required by Condition 8.
   • (b) Further design work to demonstrate the south elevation is of high quality and that its interface with adjoining elevations is well resolved.
   • (c) In dwelling unit 4.02, increase the width of the opening between the living room and the kitchen/dining room to ensure adequate secondary light to the second bedroom.
   • (d) No doors projecting beyond the street alignment onto Hayward Lane when open or closed.

These amended plans must be to the satisfaction of the Responsible Authority and when approved must be the endorsed plans of this permit.

1. As part of the consultant team an experienced architect and landscape architect, to the satisfaction of the Responsible Authority, must be engaged to oversee the design intent and construction quality to ensure that the design, quality and appearance of the approved building is maintained.
2. The development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
3. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
4. A schedule and samples of all external materials, colours and finishes must be submitted to the satisfaction of the Responsible Authority prior to the commencement of the development, excluding demolition. The schedule must show the materials, colours and finishes of all external walls (other than for the area of mural on the southern elevation), roof, fascias, window frames, glazing types, doors, balustrades, fences and paving, outbuildings and structures. When approved, the schedule will be endorsed and will then form part of the permit. All finishes and surfaces of all external buildings and works, including materials and colours, must be in conformity with the approved schedule to the satisfaction of the Responsible Authority.
5. Before any development (other than demolition) commences, a proposal for the mural on the southern façade must be submitted to and approved by the Responsible Authority. The proposal must specify the overall design, materials and detailing to be used. When approved, the mural specification and design will become part of the planning permit.
6. Prior to commencement of development, a scheme for landscaping and planting in connection with the proposed development, generally in accordance with the landscape proposal prepared by ERM (reference 0129344 RPT1, dated 23 February 2011), must be submitted to the satisfaction of the satisfaction of the Responsible Authority. The agreed scheme must incorporate water sensitive urban design features and be implemented prior to the occupation of the development, or as otherwise may be agreed with the Responsible Authority, and the landscaped areas must be subsequently maintained to the satisfaction of the Responsible Authority.
7. Prior to the commencement of the development hereby permitted, a suitably qualified consultant must undertake wind tests on a model of the approved building. A report detailing the outcome of the testing must be submitted to the satisfaction of the Responsible Authority and must also recommend any modifications which must be made to the design of the building to reduce any adverse wind conditions arising from the building's design in areas used by pedestrians, to the satisfaction of the Responsible Authority. The recommendations of the report must be implemented at no cost to the Responsible Authority.
8. Prior to the commencement of the development hereby approved (other than any preparatory earthworks or demolition) a Phase 1 Environmental Assessment must be submitted to the Responsible Authority indicating the extent and nature of any contaminated materials on site to the satisfaction of the Responsible Authority.

The Environmental Assessment of the site must be carried out by a suitably qualified environmental professional who is a member of the Australian Contaminated Land Consultants Association.

(a) The nature of all previous land uses/activities on site.

(b) How long these uses existed.

(c) What is known about any contamination of the sites.

(d) How much contaminated materials are present.

(e) How contaminated materials are distributed across the sites.

Should the Phase 1 Environmental Assessment conclude that the land is contaminated and that an Environmental Audit is necessary, prior to the commencement of the buildings/works hereby approved the applicant must provide:

(a) A certificate of Environmental Audit in accordance with Section 53Y of the Environment Protection Act 1970; or

(b) A Statement of Environmental Audit under Section 53Z of the Environmental Protection Act 1970. This Statement must state that the site is suitable for the use and development allowed by this permit.

Should a Statement of Environmental Audit be required, any conditions of the Statement must be complied with to the satisfaction of the Responsible Authority prior to the commencement of the use hereby approved. Written confirmation of compliance must be provided by a suitably qualified environmental professional or other suitable person acceptable to the Responsible Authority.

If there are conditions on a Statement of Environmental Audit that the Responsible Authority consider require significant ongoing maintenance and/or monitoring, the applicant must enter into a Section 173 Agreement under the Planning and Environment Act 1987. The Agreement must be executed on title prior to the commencement of the use and prior to the issue of a Statement of Compliance under the Subdivision Act 1987. The applicant must meet all costs associated with drafting and execution of the Agreement, including those incurred by the Responsible Authority.

1. The owner of the property must enter into a Section 173 Agreement under the Planning & Environment Act 1987 requiring, in the event that development occurs on the abutting site to the south that encroaches on the southern windows, that owners of affected properties close off the windows to comply with the Building Code of Australia.
2. Prior to the demolition hereby permitted (other than as required to undertake the Phase 1 assessment referred to in Condition 9), the permit holder must satisfy the Responsible Authority that substantial progress has been made towards obtaining the necessary building permits for the development of the land generally in accordance with the development proposed under this permit and that the permit holder has entered into a bona fide contract for the construction of the development.
3. Prior to the commencement of the development, including demolition or bulk excavation, a detailed Construction and Demolition Management Plan must be submitted to and be approved by the Responsible Authority - Construction Management Group. This construction management plan is to be prepared in accordance with the City of Melbourne - Construction Management Plan Guidelines and is to consider the following:
   • (a) public safety, amenity and site security;
   • (b) operating hours, noise and vibration controls;
   • (c) air and dust management;
   • (d) stormwater and sediment control;
   • (e) waste and materials reuse; and
   • (f) traffic management.
4. Prior to the commencement of the development, the owner of the land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act, 1987. The agreement must provide the following:
   • (a) Liability and maintenance of those parts of the development projecting into airspace or sub-soil of land under the care and maintenance of Council and disclaiming any right or intention to make or cause to be made at any time any claim or application relating to adverse possession of the land.
   • (b) Liability and maintenance of those parts of the development projecting into the air-space or sub-soil of land under the care and management of the Council, including provision, of an indemnity and comprehensive insurance cover against damage and injury resulting form the erection and use of the projection, to the satisfaction of the Responsible Authority.
   • (c) Providing for the payment to the Council of one lump sum licence fee of such amount as may be reasonably determined by a certified practising valuer appointed by the Council for that purpose.

The owner of the property to be developed must pay all of Council's reasonable legal costs and expenses of this agreement, including preparation, execution and registration on title.

1. Prior to the commencement of the development, excluding demolition and bulk excavation, a report from a qualified acoustic engineer must be submitted to the satisfaction of the Responsible Authority certifying that the development will achieve a maximum noise level of 45dB(A) in habitable rooms with windows closed.

2. Prior to the commencement of the development, excluding demolition, bulk excavation, site preparation, soil removal, site remediation, retention works, footings, ground beams and ground slab, a report by an accredited professional must be submitted to the satisfaction of the Responsible Authority documenting the energy efficiency measures introduced into the building design. The performance outcomes specified in the report must be implemented prior to the occupation of the development to the satisfaction of the Responsible Authority.
3. Prior to the commencement of the development, a Waste Management Plan (WMP) must be prepared and submitted to the City of Melbourne - Engineering Services. The WMP must confirm that the waste collection area is sufficient to service the size of the development and also to specify the size of the truck required to determine if a permit is needed to access the lane. The WMP should also detail waste storage and collection arrangements and be prepared with reference to the City of Melbourne Guidelines for Preparing a Waste Management Plan. Waste storage and collection arrangements must not be altered without prior consent of the City of Melbourne - Engineering Services.
4. The minimum clearance to the underside of the proposed projection over Hayward Lane from the existing road surface should be 5.0 metres.
5. Except as otherwise agreed in writing by the Responsible Authority, the following requirements apply. The minimum clearance to the underside of the proposed projections over Russell Street and Little Lonsdale Street is 3.0 metres and the minimum setback from the adjacent faces of kerb should be 2.5 metres. Projections proposed to project beyond 2.5 metres behind the face of kerb should have a minimum clearance to the underside of 6.3 metres above the road surface. The maximum projection beyond the street alignment should be one tenth of the road width.
6. All projections should be drained to legal points of discharge in accordance with plans and specifications approved by the Responsible Authority - Manager Engineering Services.
7. All building plant and equipment on the roofs are to be concealed to the satisfaction of the Responsible Authority. The construction of any additional plant machinery equipment, including but not limited to air-conditioning equipment, ducts, flues, all exhausts including car parking and communications equipment, must be to the satisfaction of the Responsible Authority.
8. Any satellite dishes, antennae or similar structures associated with the development must be designed and located at a single point in the development to the satisfaction of the Responsible Authority, unless otherwise approved to the satisfaction of the Responsible Authority.
9. Mailboxes and newspaper receptacles must be provided prior to the occupation of the development, including an additional mailbox for the body corporate if and when the development is subdivided, to the satisfaction of the Responsible Authority.
10. All service pipes, apart from roof down pipes, must be concealed from the view of a person at ground level within common areas, public thoroughfares and adjoining properties.
11. The owner of the subject land should construct all necessary vehicle crossings and demolish all unnecessary vehicle crossings adjacent to the subject land in accordance with plans and specifications first approved by the Responsible Authority - Engineering Services.
12. The owner of the subject land will not be permitted to alter the existing footpath/road levels in Russell Street, Little Lonsdale Street and Hayward Lane for the purpose of constructing new vehicle or pedestrian entrances without first obtaining the written approval of the Responsible Authority - Engineering Services.
13. The footpaths in Russell Street should be upgraded and reconstructed in sawn bluestone together with associated works including the renewal and/or relocation of kerb and channel and the relocation of all services pits and covers as necessary at the cost of the Owner/Developer in accordance with plans and specifications first approved by the Responsible Authority; Manager - Engineering Services.
14. Prior to the occupation of the development hereby approved, a stormwater drainage system, incorporating water sensitive urban design, must be constructed for the development and provisions made to connect this system to Council's underground stormwater drainage system and, where necessary, upgrade the system to accept the discharge from the site in accordance with plans and specifications first approved by the Responsible Authority - Engineering Services.
15. No street tree adjacent to the site may be removed, lopped, pruned or root-pruned without the prior written consent of Council's Tree Planner.
16. Any requirement to temporarily relocate street lighting should be first approved by the Responsible Authority - Manager Engineering Services.
17. Glazing materials used on all external walls must be of a type that does not reflect more than 15% of visible light when measured at an angle of 90 degrees to the glass surface, to the satisfaction of the Responsible Authority.
18. This permit will expire if one or more of the following circumstances apply:
    • (a) The development is not started within two years of the date of this permit; and
    • (b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the date upon which the permit expires. A request for an extension of time must be in writing and be received before the permit expires, or within three months afterwards.

[1] Map 1 to this clause shows the existing plot ratio of the relevant block as 8.63 in 2000.

[2] This would limit the building to 15 or 16 levels, about the top of the floor setbacks above the second lowest hanging garden.

[4] Peddlethorp Architects v Melbourne CC [2010] VCAT 1694.

[5] We assessed this lane as being wider than 7 metres, rather than the 5 metres of which we were advised at the hearing.

[6] And which, we believe, was originally dictated by the maximum height of fire ladders.

[7] We suspect that this is one of those "universal truths" that is perpetuated because it has never been seriously questioned or tested, draws no basis from any evidence and relies for acceptance on unquestioning repetition.

[8] The lowest hanging garden is, as we understand it, on the eastern face of the building, so it would not be readily seen as a podium in views along Russell or Little Lonsdale Streets.

[9] We understand that the building is intended to provide its own water for the hanging gardens

[10] The tests relate to compliance with a local pattern, providing oversight of streets, being discrete rather than prevailing and indicating a building's type of occupancy.

[11] Brady Lonsdale Pty Ltd v Melbourne CC [2007] VCAT 349

1. [12] Clause 21.05-3 includes the objective "Ensure development minimises the adverse effects of wind down drafts and provides wind protection in public spaces relative to their role and function." Clause 22.01 has a policy section dealing with "Wind and Weather Protection".

[14] Council's expert did not identify any points around the building where resultant wind speeds would be excessive.