Colquhoun & Ors v Yarra CC [2010] VCAT 1710

Colquhoun & Ors v Yarra CC [2010] VCAT 1710 - VCAT 2010 case summary — Zoe

[48]

The proposal is a large scale, mixed use, staged project. The proposal is primarily residential in nature (with 586 apartment style dwellings), but has commercial components and landscaping works on both the Honeywell site and the riverside area.
There are three main buildings, each a separate stage. Each is a relatively long building, with the narrower sides facing the Yarra River so that it has the effect of being like three splayed fingers stretching towards the river. Each sits above a 3 to 4 level podium. The podium is setback about 10 m from the northern and eastern boundary, although private, ground level and sunken terraces intrude partly into the setback area.
Building 1 (Stage 1) is near the western boundary. It is hard edged to Victoria Street, has eleven storeys (around 38 m) and its height is at RL 51.6 m. It is setback from the northern boundary by between 5 m and 12 m (for the podium element, including terraces) and between 25 m and 38 m (for the tower element). It comprises 214 dwellings, 235 car spaces over five levels, and 1,404 sq m of commercial use, including a 115 seat licensed restaurant and a convenience shop at Victoria Street.
Building 2 (Stage 2) is oriented to the north-east from the centre of the land. It has 9 storeys (about 32 m) and its height is at RL 45.9 m. It is setback from the northeast boundary by between 2.3 m and 5 m (lower podium), between 11 m and 16 m (upper podium), and between 17 m and 42 m (main tower). It comprises 192 dwellings, 247 car spaces (over 4 levels) and 818 sq m of commercial space.
Building 3 (Stage 3) is on an east-west alignment, extending 70 m along Victoria Street. It has 9 storeys (about 32.5 m) and its height is at RL 43.7 m. It is setback from the eastern boundary by between 1.6 m and 13 m (lower podium), between 3.2 m and 10.2 m (upper podium), and between 10.3 m and 39 m (main tower). To Victoria Street, the building is setback between zero and 9.2 m. It comprises 180 dwellings and 187 car spaces.
The proposal provides two new pedestrian links to the Yarra River. The first and larger one is oriented north from the existing signalised entry off Victoria Street. It passes between Buildings 1 and 3 and then Buildings 1 and 2 before reaching the Trail. It starts at least 25 m wide and narrows to about 15 m wide before opening to 20 m where it joins the public land containing the Trail. It is to be publicly accessible. The second is oriented east-west and after passing between Buildings 2 and 3, there is a wider courtyard, that in turns leads to a 5 m opening between these two buildings to the Trail. Access is to be part public and part private.
The works in the riverside application comprise a floating pontoon in the River, stairs to and across the Capital City Trail between the pontoon access ramp and the link between Buildings 1 and 2, widening of the Capital City Trail, stairs between Building 3 and the upper Trail, and removal and subsequent re-instatement of some vegetation.

[51]

A detailed web of policy applies or relates to the proposal. We do not propose to deal with it all in any detail.
State policy supports urban consolidation in accordance with Melbourne 2030 and Melbourne @ 5 Million.
The land is in a MAC and is a SRS. The land is a significant opportunity to implement urban consolidation objectives.
A number of the parties made submissions about the effect of the new State Planning Policy Framework (SPPF) that commenced before the hearing but after the notices of decision. It is unnecessary for us to examine each new provision in detail because we are satisfied that, in the context of this case, the new SPPF largely has a neutral effect.
We do, however, record that a responsible authority must now explicitly take Melbourne @ 5 Million into account and this tends to move the balance in favour of achieving urban consolidation objectives. Otherwise, the policy continues that it is unnecessary to take neighbourhood character into account in a MAC. The need to take into account the effect of the former cl 19.03 provisions (in new cl 15.01-1) also continues.
Local policy supports significant development in the MAC and the Victoria Street East Precinct. Such development is occurring.
The thrust of these policies needs to be balanced by State and local policy requiring development to respect, relate to and improve the Yarra River environs.
Council adopted the Victoria Street Structure Plan in April 2010 (the Structure Plan).[4] This is a Plan for the Victoria Street MAC and surrounding areas. The Honeywell site is in an area of substantial change in the Structure Plan. Improved connections to the Yarra River are proposed. Preferred 'future buildings' for the land are said to be medium height development of 3 to 6 storeys, but the Structure Plan notes that recent decisions by the Minister for Planning have 'established the scale of redevelopment in the [Victoria Street North/Yarra River area, including the land]'. The Structure Plan is yet to be implemented by changes to the scheme.
In summary, the thrust of policy supports significant redevelopment of the Honeywell site, subject to appropriate treatment of the Yarra River interface. Recent approvals in the area (see Built Context, below) and the increased emphasis in State policy on accommodating a growing population in established areas, indicates to us that the preferences in the Victoria Street East Precinct, Richmond - Urban Design Framework 2005 (the UDF) and Structure Plan for medium rise development not exceeding six storeys are now outdated. While we have considered all relevant policy in this case, we have give somewhat lesser weight to those policy preferences restricting development of the land.

[61]

Clause 2.0 of DDO4 makes provision for buildings and works. The drafting of these provisions does not make them into 'requirements' as foreshadowed in cl 43.02-2.[15] A requirement is a provision of a mandatory character. Clause 2.0 is not of that character. Each of the four dot points in cl 2.0 provides that buildings 'should' adopt specified standards relating to height, setback and articulation.
Clause 2.0 has the character of discretionary or aspirational provisions. Clause 5.0 of DDO4 refers to them as 'benchmarks'. Benchmark is not an ideal term because a benchmark may be mandatory or discretionary. Nonetheless, for convenience, we will refer to cl 2.0 of DDO4 in these reasons as 'discretionary benchmarks'.
The Groups urged us find that 'should' is a prescriptive or mandatory word in context, having regard to the purpose of DDO4. We do not agree. In the context of the scheme as a whole, of cl 43.02, and of DDO4, 'should' has a non-prescriptive or non-mandatory meaning, consistent with the performance-based system in VPP schemes. The scheme, as a whole, employs 'must' for prescriptive or mandatory provisions and 'should' for non-prescriptive or discretionary provisions.[16]
DDO4 employs both 'must' and 'should'. It employs 'must' in cl 5.0 where specified matters, as appropriate, are required to be considered in deciding an application. It employs 'should' in cl 2.0 and in numerous places in that clause. Clause 2.0 contains a contrasting mandatory provision at the outset - it provides that a permit 'is required' to construct a specified fence.
We find, therefore, that the word 'should' in cl 2.0 of DDO4 is non-prescriptive and non-mandatory.
Because DDO4 contains no mandatory 'requirements' it is unnecessary for a permit to be granted under cl 43.02-2 that does not accord with the discretionary benchmarks in DDO cl 2.0. A permit is required only under cl 43.02-2 to construct a building or carry out works.
It is unnecessary to ascertain the intentions of the drafters of DDO4 because it is clear that cl 2.0 of DDO4 does not have a mandatory character. However, we note that our view accords with the view of the planning panels that considered Amendments C66 and C75 that the provisions should be flexibly and not rigidly applied and are a 'starting point' and a 'guide' to the preferred scale of development.

[73]

The Groups and Boroondara submitted that the proposal would be excessively high and bulky in views along Victoria Street, of not complying with the prescriptive requirements of the UDF and the Structure Plan.
We have concluded that, in the context of the emerging built form along Victoria Street, as is now being established by other development approvals and with regard to the principles in the UDF and the Structure Plan, the proposal's interface with Victoria Street is acceptable.
The relationship between this development and the Victoria Street streetscape is set out in DDO2 (which applies along the Victoria Street frontage of the Victoria Street East Precinct as well as to other arterial roads), and DDO4 (which applies to the whole of the Victoria Street East Precinct).
DDO2 is a generic overlay that has been applied to land fronting a large number of arterial roads in the City. It contains a set of very generalised objectives which do not reflect the fact the Victoria Street East Precinct is one designated for major change. DDO4, as we have discussed already, sets objectives and discretionary benchmarks for building height and setback. The focus on height and setback benchmarks is at the river interface. The preferred maximum building height along Victoria Street is RL 41 m and includes a requirement for a height-transition along Victoria Street to the River at RL 29 and a maximum podium height along Victoria Street of RL 26 m.
Mr Czarny faulted the Victoria Street interface because, he submitted, it failed to comply with DDO4, in particular the lack of a podium, excessive height and presentation of 'long uniform elevation to the south east of the site'. He concluded that the proposal would appear as an undifferentiated mass in views from the east, notwithstanding the separation of the tower structures in Stages 2 and 3.
Ms Lardner, in her submissions and cross-examination of various witnesses, sought to emphasise the undesirable dominance of the proposal, particularly Stages 1 and 2, when viewed from the bridge. She proposed that the south-western end of Stage 2 should be shortened to allow a gap to be seen between Stages 1 and 2 when viewed from the bridge.
She also sought to establish that the proposal exceeded the preferred building heights in the UDF and the Structure Plan.
The proposal, in relation to its presentation to Victoria Street, exceeds the discretionary benchmarks in DDO4, even taking into account the drafting deficiencies of DDO4, which we have already discussed. The maximum height exceeds RL 41 m - the Stage 1 tower has a maximum height of RL 51.65 m, Stage 2 of RL 45.90 m and Stage 3 of RL 43.70 m, with the most prominent eastern podium, towards the river, being at RL 26 m.
Do these heights satisfy the objectives of DDO2 and DDO4? The DDO4 objectives relate to the river interface. The only objective that relates, in part, to the Victoria Street frontage is the objective that seeks to protect views to significant landmarks from Victoria Street. Clause 5.0 of DDO4 requires consideration of a number of river interface matters plus the Victoria Street's southern footpath, landmark view protection and the UDF aspirations.
In contrast, DDO2, which relates specifically to Victoria Street, contains only the most general and vague of objectives and these do not readily relate to a locality expected to undergo substantial change. These objectives are, for example, largely directed to such matters as protection of 'existing streetscapes and places of cultural heritage significance', reinforcing 'the pattern of development and the character of the street', achieving high quality architecture, maintaining or creating a high level of amenity for adjoining dwellings and so on, and improving community safety and limiting visual clutter. The most general, but perhaps most useful nevertheless, is the first objective '[t]o recognise the importance of main roads to the image of the City'.
The three decision guidelines are no more helpful, merely providing a checklist of matters that the responsible authority must consider, without any further guidance.[19]
Mr McGauran had proposed, and the Respondent had not opposed, that levels 8 to 10 of the Stage 1 building be set back a further 6 metres further from Victoria Street. Subject to this proviso, he concluded that the proposal would be responsive to the preferred future character of the street, as envisaged by existing approvals and planning controls. These include provision for a building on the south side of Victoria Street (in the Victoria Gardens complex) to a height of RL 55 m, the existing Fenix building to the east of this at RL 35 m and other approvals to the west of the land and on the northern side of Victoria Street.[20]
The proposal will provide a hard urban edge to Victoria Street, as already occurs elsewhere and as is supported by other policies and the UDF. We consider that the height of the three towers, subject to the upper-level setbacks proposed to the Stage 1 tower by Mr McGauran, are acceptable. The overall Victoria Street frontage is broken into two large and differentiated elements by the open-space link, the varying architectural treatments and the articulation created by the different orientation of the three towers themselves.
We accept that, in conjunction with the likelihood of a building opposite to a height of RL 55 m, the proposal will help frame a worthy gateway at the eastern end of Victoria Street and we accept the opinions of Mr Borelli and Mr Jordan that a large building is appropriate for this location on this road. With respect to Ms Lardner's submission about the overwhelming bulk of Stages 2 and 3, we conclude that the large space between them will clearly differentiate them into separate elements and the Stage 1 building to the rear of Stages 2 and 3 would largely nullify any the benefit of any gap between the latter two buildings.

[74]

As previously stated, the most relevant provisions of the scheme, in relation to the river interface, are DDO4, cl 21.05 (Built Form) and cl 22.11-3 (Victoria Street East Precinct Policy: Yarra River and Open Spaces and Urban Design and Built Form). The UDF (a reference document in DDO4) and the Structure Plan (adopted by Council in April 2010) are also relevant.
The Applicants submitted that the proposal's height and setbacks from the northern and eastern boundaries met neither the first scenario (the 10 m setback) in cl 2.0 of DDO4 nor most of the factors for exceeding the second scenario (the 20 m setback).[21] We have no difficulty in finding that the proposal does not meet the discretionary benchmarks in DDO4.
Each of the proposal's three towers has a height that is, to different degrees, in excess of that preferred by DDO4.[22] DDO4 seeks to achieve a height along Victoria Street that progressively reduces from a high point to the west to a lower point near the bridge. The proposal's northern and eastern boundary setbacks, at 10 m, include excavated terraces/courtyards for the lower outward-facing layer of dwellings and the outer edge of these terraces have a minimum 5 m boundary setback. On the other hand, the wall heights at the minimum northern and eastern setbacks are to be substantially less than the preferred 11 m in DDO4.
However, the proposal's failure to meet the DDO4 discretionary benchmarks does not mean it therefore fails to meet DDO4's relevant objectives. The Respondent's witnesses' evidence was that the proposal does satisfy the objectives of DDO4 and the related intents of the UDF and the Structure Plan. We agree with Mr Pitt that the Applicants relied too much on testing the design against the discretionary benchmarks of cl 2.0 of DDO4 and did not apply any other test to ascertain compliance with DDO4's objectives.
Ultimately, while the benchmarks may be the preferred way of meeting the objectives, they are not the only way and a failure to meet the benchmarks does not justify a conclusion that the objectives are not met. In this respect, we gave greater weight to the evidence of Mr Sheppard and Mr McPherson who, more explicitly, evaluated the proposal against the objectives of DDO4.
Given that the appropriate test of the proposal's acceptability in relation to DDO4 becomes one of assessing it against the four relevant objectives, we have found it most useful to consider on the evidence and submissions relative to each of these, in turn.

[76]

In our opinion, the most important viewpoints from which to assess this objective are those from the Trail, which passes along the riverbank by the land's northern and eastern aspects, and from the bridge. We have dealt elsewhere with the matter of views from private land situated across the river.
Mr Sheppard's evidence was that the proposed building envelope, with its 10 m wall setbacks and relatively low outer walls would satisfy this objective better than the discretionary benchmark with 11 m high walls with the same setback and a 1:4 upward envelope slope above that. We agree.
Mr Sheppard's conclusion drew on the architect's presentation of sight lines to the proposed building from the adjoining Trail. These demonstrated to our satisfaction that the visible components of a building that complied with the first scenario in cl 2.0 of DDO4 (ie an outer wall of 11 m maximum height at a 10 m setback) would be much more dominant to someone on the Trail than the nearer visible elements of this proposal. That is, this proposal would be visually less dominant than would a building that complied with the first scenario envelope in cl 2.0 of DDO4.
Though not a determinative issue, we note that the proposal would be less visible from the Trail than most other buildings adjoining the Trail to the west. We do not consider that DDO4 is seeking to conceal development on the land from the Trail.
With respect to the landscape character of the river corridor as it may be experienced from the Boroondara side of the river, we conclude that this aspect is also acceptable.
The landform across the river is widely varied. There is a steep escarpment to the east, around the river bend and along to Hodgson Street. West of Hodgson Street are river flats that are partly in public and partly in private ownership. Some of this land is in a Public Acquisition Overlay or an Urban Floodway Zone. The zoning and overlays of the Boroondara Planning Scheme indicate that, at some time in the future, all of the riverbank west of Hodgson Street will be public land. The areas of existing and future public open space across the river and west of Hodgson Street are about 100 m from the proposal's upper levels and provide direct or oblique views towards and past the land.
There is also an area of public land immediately north of Victoria Bridge east of the River, accessed by a narrow ROW from a nearby court. There is no indication that, either now or in the future, this area would receive much public use and, in any case, views from this area are screened by mature trees.
We conclude that, apart from the matter of building height, the differences between the proposal and a building that complied with the envelope that met the discretionary benchmarks in the first scenario of DDO4 cl 2.0 would not be material. Either way they would both be large, relatively bulky buildings but with their higher sections set well back and, in the case of this proposal, the lower sections being more eroded than sought by the DDO4 envelope.
We accept Mr McGauran's opinion that, in views from the north, the proposal will form 'a legible albeit evident part of the emerging Victoria Gardens shopping centre and ... will integrate in a visually coherent form with (its) emergent scale ...'.
The north-eastern (outer) end of the Stage 2 building, as originally proposed, would have a vertical wall of three levels above a podium, with the levels above this wall then stepping back. Mr McGauran proposed, and the Respondent did not oppose, that certain upper levels of the Stage 2 tower be set further back from the river, in order to reduce their 'visual intrusion ... into the river view'.
This additional setback would be applied to levels 6, 7 and 8, with level 6 being the top level of the 'wall' component referred to above. Mr Jordan disagreed, concluding that these setbacks would 'confuse the clarity of the design concepts for each building'.
We agree with Mr Jordan. The increased setbacks of the nominated levels would increase the sense of erosion of the north-eastern end of Stage 2 by weakening the wall-effect of the original design. The removal of the area of building proposed by Mr McGauran would, in our view, make only a minor difference to the building's profile, and that would be for a high part of the profile and for only limited and more distant viewing points.
We agree with Mr Jordan than retention of the full sections of levels 6 to 8 would ensure an intended degree of consistency between the architectural concepts of all stages and would have no or minimal effect on observers' appreciation of the river corridor or any sense of the building's overall scale.
Mr Jordan also differed from Mr McGauran in respect to the treatment of the roof profile. Mr McGauran had proposed something more 'transparent and ephemeral', while Mr Jordan proposed that the top of the building 'adopts the treatment of the elevation of the typical floors unaltered ...'. We agree with Mr Jordan's view on this matter, as this would maintain the original strength of the building's capping.
We also questioned the parties about the possibility of later construction of transmission towers above the building's parapet, devices that would seem to destroy any architectural roof scape that was being argued before us and had not been considered by the designers or expert reviewers. Mr Pitt proposed an appropriate permit condition requiring shrouding if and when such devices were proposed in the future.
We conclude that the original proposal meets this objective, including with the retention of the river-end sections of levels 6 to 8 of Stage 2. We also accept Mr Jordan's opinion as to the appropriate treatment of the roof profile and add our own requirements for a permit condition that would require (with appropriate design forethought) for the concealment of any future transmission structures above the building.

[78]

The proposal will substantially improve the public accessibility of the riverside open space and pathway system. The proposal includes the new pedestrian link between Victoria Street and the river, leading down to the proposed pontoon (the link). Additional landscaping will be provided along and behind the embankment.
Although DDO4 does not require an east-west pedestrian link between Victoria Street and the river, various policies and referral documents do refer to such a link:
- The Structure Plan proposes, at page 15, to 'develop more attractive links to the River from Victoria Street' while the map on page 16 shows a number of possible links across or near this site, with a notation 'investigate opportunities for green links to the river with new developments'.
- The UDF, at page 5, shows a continuation of River Street (to the south of Victoria Gardens) across the site to the river as 'a pedestrian priority boulevard'.
- The Victoria Street East Precinct Policy, at cl 22.11 of the scheme, includes the objective '[t]o create strong public links to the Yarra River and improve the accessibility and amenity of the River corridor as a significant public open space'. However, there is no specific policy that would implement this objective as a cross-site pedestrian link.
The Respondent's witnesses' opinion was that the link would be a valuable, publicly accessible and usable open space and should be considered a contribution to the accessible open space along the river corridor, as required by policy and referred to in DDO4 cl 1.0 and cl 2.0. Boroondara argued that the link is required by policy, should be provided anyway and should not be considered as a contribution to the open space sought by DDO4.
It seems to us that the policy requirements for this link are relatively vague and inconclusive and there are many ways that it could be provided that would not contribute anything to public open space or its integration with the river corridor. One example that comes to our minds, where there is much clearer requirement for a pedestrian link (though none for public open space) is the east-west link that the Stonnington Planning Scheme requires to be provided through the Forest Hill Precinct in South Yarra.[23] Developers have now provided that part of this link between Yarra and Claremont Streets.
On this basis, we accept that the link goes well beyond that that would satisfy the presently vague policy and would also provide a substantial benefit in terms of publicly accessible, attractive and usable open space that would effectively link on-site activities to the riverbank area.
Other than for providing for additional landscaping, users will get little value by increasing the area of open space around the Honeywell site's river boundary, whether publicly accessible or otherwise and whether of 10 m or 20 m width, as is encouraged by DDO4. This is because the steep embankment between the crest line and the Trail would render ineffective any attempt to integrate these two areas and, in the absence of such integration, we do not see that such an upper level of accessible perimeter open space would be of any great public benefit.
We therefore do not agree with the Groups that a rigid 20 m setback should be imposed and that all of that area must be publicly accessible and no part used for private open space.
We conclude that this objective is met.

[80]

This objective seeks to protect views from more distant points of the areas of public open space within the river corridor, and of areas of public open space in the City of Boroondara, as well as views of the Skipping Girl sign to the west.
There were no submissions suggesting that the proposed buildings close to Victoria Street would obstruct or fail to protect views of the Skipping Girl sign.
Boroondara argued that there would be an adverse visual impact of the proposal from the Barkers Road cutting (the cutting) and the Victoria Street Bridge (the bridge). Ms Lardner identified this as the most important issue affecting Boroondara, because this viewpoint 'would afford the greatest appreciation of the proposal from the public realm'. This concern is, in our view, unrelated to this third objective, for two reasons.
First, the concern is unrelated to 'long-range views of the River corridor paths'. These paths are largely out of view from the cutting and the bridge, particularly by vehicle occupants on Barkers Road and the bridge. Even if they were in view from certain points, the proposal does not disturb those views.
Second, the concern is unrelated to 'long-range views of areas of public open space within the corridor and on the opposite bank'. The proposal does not disturb the view of the riverside area public open space in the corridor from the cutting and the bridge, and does not disturb any views of public open space on the opposite bank. Those areas are largely not in view from the cutting and the bridge and, to the extent they might be, are not disturbed by the proposal.
We have already referred to Boroondara's submission that the south-west end of Building 2 be truncated to open a viewing gap between Buildings 2 and 3. Having regard to the location of Building 1 and the topography and other existing buildings to the west, we do not accept this change would create views of public open space in the river corridor.
We find that the proposal would not interrupt or obscure any views of 'the river corridor paths and areas of public open space' (our emphasis), though this is not the point that we think the Applicants were advancing. Rather, the proposal will introduce a new, large building element adjoining, above and stepping away from those paths and spaces. The building's height, whether as proposed or somewhat less, would not affect views of the paths and spaces and, in our opinion, an increase in the setback from 10 m to 20 m for the river boundary wall would have little or no effect in these views. The proposed 10 m setback will include a 5 m strip that is available for additional landscaping, so that in conjunction with additional landscaping to the adjoining embankment and public open space, the river corridor's vegetation will be enhanced.
We conclude that this objective is met.

[84]

Mr Schutt prepared photographic montages that sought to demonstrate the scale of both the DDO4 building envelope and the proposal, as viewed from three adjoining properties to the north of the site. We accept that the proposal's height substantially exceeds the first scenario building envelope in cl 2.0 of DDO4 and the greatest excesses are the tower blocks of Stages 1 and 2. Mr Kane submitted that the drivers for more intensive development should be tempered by policies that a design 'is appropriate to its location and sensitive in its impact on adjacent residential properties'.
However, we conclude that relevant policies do not provide this thrust. While there are general policies to this effect in the scheme at both State and local levels, these are quite generic. More specific, and therefore of greater relevance, is the lack of any reference to context or character in the strategies for a MAC as compared to a Neighbourhood Activity Centre.[24]
On one view, the envelope in the DDO4 first scenario provides the appropriate balance that Ms Colquhoun and her neighbours are seeking because it reflects both an intention to allow much greater densities of development on the land and to define an outer limit to the overall building scale. However, we do not consider that the envelope of DDO4 can be interpreted this way.
Rather, cl 2 of DDO4 allows an unspecified increase in building height trade-off for other design features. We can understand the attraction for planning authorities in offering a trade-off of more development in one form or another in return for some other public benefit. However, we find it difficult to see any nexus in this case between the extra building height in return for increased setbacks of walls from the crest line - or at least, there is no obvious nexus insofar as this provision affects Ms Colquhoun and her neighbours.
In this case, DDO4 encourages an increased building setback of 20 m from the crest line and, in return, allows an unspecified increase in building height, with the higher buildings set 35 m from the crest line. If the design had followed this preference, Ms Colquhoun and her neighbours could well be faced with building towers of the same height as this proposal, set only slightly further away. The fact that the ground-level walls would be 20 m, rather than 10 m, from the crest line would be irrelevant to the intrusive effect of the towers.
While views may legitimately be considered to be a significant aspect of a dwelling's amenity, the protection of views should be supported by planning policy or controls if they are to be given considerable weight. The residential areas to the north are facing a MAC and it is inevitable that, given the size and nature of the Honeywell site, they will be facing a development of a large-scale typology. A reduction in height of any of the towers by up to three storeys will not alter the general nature of that typology. We have concluded that the proposal amounts to a change of view, not to a loss of visual amenity.
We also have taken into account the extent of the intervening distance (about 130 m) and that further development on the Victoria Gardens site to the south of the land, rising to a permitted RL 55 m, will also appear above the canopy.
Consequently, having regard to the fact that issues of neighbourhood character are explicitly excluded from the strategies for a MAC, and to the fact that DDO4 explicitly allows buildings to exceed its envelope on conditions that would not be discernible from across the river, we conclude there is no unreasonable loss of visual amenity.

[85]

The grounds relied on by Ms Colquhoun and her neighbours relate to unreasonable noise impacts, principally from the proposal's two restaurants (partly outdoor), one café, rooftop bowling green and adjoining wine bar, and pontoon.
The Honeywell site has few sensitive interfaces. Adjoining land to the west is commercial and is part of the MAC. The nearest existing sensitive uses are those of Ms Colquhoun and her neighbours, about 130 m away.
The only expert noise evidence was that of Ms Hui, called by the Respondent. The nearest sensitive noise receivers will be the dwellings within the proposal. As noise emissions from the proposal's commercial elements must comply with SEPP N-1 and SEPP N-2 in respect of dwellings within the proposal, those requirements for dwellings 130 m will also be met.
In our view, the notice of decision satisfactorily deals with control of unreasonable noise.
The notice of decision requires the preparation of an updated acoustic report before the works are completed, which is to demonstrate compliance with permit conditions and SEPP N-1. It also requires the removal of the roof top wine bar on Building 1. It also requires that no live music be played at the restaurants and there be no external speakers. It addresses patron noise from outdoor areas by requiring compliance with a Noise and Amenity Action Plan endorsed by the Council. It specifies maximum patrons numbers in the restaurants and the café and requires trading to cease at generally 1 am at weekends (for the restaurants) and 11 pm at other times.
There is no evidence to support the need to relocate the bowling green from the rooftop of Building 1 to Building 3. In the absence of a liquor licence, we do not anticipate that noise from the bowling green would be of any significance.
Ms Colquhoun seeks the restaurants and cafes to cease trading at 10 pm. In the absence of evidence, in the context of location in a MAC and having regard to the fact that dwellings in the proposal will be much closer to noise sources than Ms Colquhoun's dwelling, we are unable to agree with a condition to this effect.

[86]

State policy seeks to achieve 'high quality urban design and architecture'.[25]
Local policy also provides that:
- Higher built form in DDO4 should demonstrate 'superior architectural quality'.[26]
- Higher built form on strategic redevelopment sites or within activity centres should achieve 'architectural design excellence'.[27]
- New development should make a positive contribution to streetscape through 'high standards in architecture'.[28]
Ms Reed and Mr Jordon provided detailed analysis to explain why they considered the proposal to represent high quality architecture in both the sensitivity of its layout to the site and its context and its architectural massing and detailing and, in this context, supported its contribution to the Victoria Street streetscape. Ms Reed proposed further improvements to the detailing of some of the ground-floor, Victoria Street frontages.
Mr Sheppard proposed additional windows to the east façade of the commercial space fronting Victoria Street.
Mr Lewis relied on a document prepared in 2006 by the UK Commission for Architecture and the Built Environment (the CABE) entitled CABE Design Review - How CABE evaluates quality in architecture and urban design. Applying the CABE Design Review criteria, he considered the building to be of poor architectural quality in almost every respect. His analysis was based on testing whether the design met one of the criterion that could be used to justify heights in excess of the DDO4 guidelines.
The approach of the CABE Design Review, in providing a number of criteria against which to assess a design, appears sensible. However, it does not in our view provide a useful basis for assessing the quality of a particular architectural design. Nonetheless, it may provide useful guidance for the design process or in comparing designs, as in an assessment of entries to a design competition. The CABE Design Review contains no design benchmarks against which a design's outcomes can be objectively measured and most criteria are expressed in highly general terms. Mr Lewis' assessment of the design against many of the criteria also appears to be unsubstantiated and more a matter of opinion.
We have concluded that we should place greater weight on the opinions of Ms Reed and Mr Jordan.
We find that the proposal represents a building of considerable architectural merit. We were impressed with the concept of three tower elements of rectangular form with narrow sides facing the river in a northerly, north-easterly and easterly orientation. This 'three fingers' concept creates a sense of openness and penetration to the river and a focus for pedestrian and vehicular entry to the urban edge of the Victoria Street. It facilitates progressive eroding of the harder urban interface at Victoria Street towards the river. It also minimises less favourable southern orientation of dwellings and permits of a variety of architectural treatments and articulation.
The design also provides new public open space adjoining the river corridor and Trail and in the entry to the new major pedestrian link to Victoria Street. It also minimises space on the surface of the Honeywell site for vehicle access and car parking, and maximises pedestrian access. Finally, it also employs a variety of materials and finishes, including natural timbers and vegetation to green to selected facades.

[87]

It is policy to encourage development to incorporate environmentally sustainable design (ESD) measures in a range of 'areas' such as passive solar design and water efficiency.[29]
The fifth factor in DDO4 for permitting proposed buildings in excess of the discretionary benchmark height/setback ratio in the first scenario in cl 2.0 is if the 'design demonstrates principles of [ESD]'.
Although we have concluded, separate to this criteria, that the design meets the objectives of DDO4, we have also concluded that the proposal does demonstrate a number of these ESD principles.
The proposal achieves a performance greater than that required by the Building Code of Australia (BCA). It therefore achieves a high level of thermal performance. It does not achieve 'world class' ESD principles, but that is not the standard encouraged by the scheme. The notice of decision incorporates a range of further measures, such as shading to western facades and rainwater connection to a number of toilets.
Ms Collis' evidence was that the rating tool that accords with best ESD practice is the Green Building Council of Australia Green Star Multi-Residential rating tool. In her opinion, the proposal could achieve between 24 and 42 points out of 100 points under that tool, which is insufficient for four-star Green Star certification or 'best practice'.
Mr Talacko re-evaluated the proposal's rating in light of changes to the Respondent's landscape plan prepared by Tract Consultants. The main change was the incorporation of rain gardens. This provides for enhanced stormwater quality performance and rainwater harvesting. This change enables, in his opinion, the proposal to be capable of achieving a four-star Green Star rating.
On a more qualitative level, there is a high level of bicycle parking spaces, the ready availability of tram services, access to the Capital City Trail, a relatively low proportion of dwellings with a purely southern orientation, and various ESD-oriented changes required by the notice of decision.
We rely on the revised rating by Mr Talacko and the various qualitative features of the proposal and included in the notice of decision in order to find that the proposal demonstrates principles of ESD.

[89]

The opinion of the Presiding Member is that the Tribunal is unable to grant a permit for the riverside works, having regard to the effect of the AH Act. The Respondent must prepare a CHMP before a permit could be granted.
To assist the parties, the Tribunal heard argument on Application P1204/2010.
With the benefit of that argument, we are prepared to indicate that we are favourably disposed towards the grant of a permit in accordance with the notice of decision.
We cannot provide the parties with any more of an indication at this stage. If a CHMP is prepared and approved, any permit we ultimately grant must be consistent with the approved CHMP.[30] We understand that the preparation and approval of a CHMP may take some time and, consequently, there is a possibility that legislation, including the scheme, may change before the date of our final orders.
In coming to our tentative views, it is relevant that Melbourne Water (the waterway and floodplain authority), Parks Victoria (the land manager) and Department of Sustainability and Environment support the grant of a permit for the riverside works, in accordance with the notice of decision.
The riverside area is Crown land reserved for 'conservation, recreation and tourism' in 2001. It is used for public open space.
The proposed works consist of a floating pontoon in the River, stairs to and across the Trail between the pontoon access ramp and the link between Buildings 1 and 2, widening of the Capital City Trail, stairs between Building 3 and the upper Trail, and removal and subsequent re-instatement of some vegetation.
The Groups submitted the stairs on the eastern side of the riverside area should only link to the upper Trail. We do not oppose this submission, and note that the riverside works and the notice of decision already incorporate this restriction.
The proposed works are consistent with broad objectives for improving the recreational and tourism potential of the Yarra River and with the purpose of the PPRZ. The modified pontoon, as proposed in the notice of decision, will have a reduced environment impact and is consistent with the purpose of the ESO.
The corridor will be enhanced by the Trail upgrades near the access points and by the proposed landscaping on the public land.
The dedication of the first 5 m inside the crest line to a landscaping strip available for public access will enable improved landscaping to strengthen existing landscaping below the crest line. As we state elsewhere in these reasons, we do not consider the 5 m as being needed or likely to be actually used to any significant extent for use by the public for open space. The main public use will continue to be the Trail.
In relation to the proposed pontoon, there are a number of private and public pontoons along the Yarra River. All improve accessibility to the River consistent with policy. We do not oppose the authorities' requests that the pontoon be reduced in size and tucked in closer to the river bank to reduce its impact on the River.
The way forward is for the Respondent to consider and formally notify the Tribunal and parties whether or not it intends to prepare a CHMP.
If a CHMP is to be prepared, we then anticipate issuing further orders adjourning the Application to an administrative mention in about four months so the Tribunal is informed of the progress that is being made. If the CHMP is approved before the mention, we would expect the Respondent to file with the Tribunal a copy of the approved CHMP. Having regard to the size and scope of the approved CHMP we would then make further orders about service on the parties. The Tribunal may then invite the Respondent to inform the Tribunal whether the parties consent to orders affirming the Council's decision and granting a permit in the form of the notice of decision, or whether a further hearing (for example, on the effect of the approved CHMP) may be required.
If a CHMP is not intended to be prepared, the Tribunal would be likely to make final orders disposing of the Application on the grounds the Tribunal has no jurisdiction to grant a permit.

[96]

The Applications concern two permit applications under the Yarra Planning Scheme (the scheme). Consequently, under the Aboriginal Heritage Act 2006 (the AH Act) there are two activities and two activity areas.
The activity in both permit applications is a high impact activity.[32] Neither is an exempt activity.[33]
Permit application PL09/0877 is to use and develop a major mixed use development, including 576 apartments, at 677-679 Victoria Street, Abbotsford (the mixed use application). The activity area is the land parcel of 1.422 ha with that address.
Permit application PL09/0876 is to develop a pontoon in the Yarra River and associated river bank works, including upgrading the Capital City Trail (a major walking and cycle trail) (the riverside application). The land subject of this application adjoins the land subject of the mixed use application and is wholly Crown land. The activity area is those parts of the Crown land that are directly affected by the pontoon and associated works.
Unless the activity area for both permit applications has been subject to significant ground disturbance (SGD), the activity area for both permit applications is an area of cultural heritage sensitivity (CHS) because those areas are within 200 m of the Yarra River.[34]
Subject to the SGD issue, a cultural heritage management plan (CHMP) is therefore required to be prepared and approved before the Tribunal could grant a permit.[35]
When the Yarra City Council (the Council) issued a notice of decision to grant a permit in respect of both permit applications on 16 April 2010 it was satisfied that a CHMP was not required.
The Yarra River Action Alliance Inc and Protectors of Public Lands Victoria Inc (the Groups) filed a statement of evidence dated 27 July 2010 prepared by Mr Nigel Lewis entitled Assessment of Post European Ground Disturbance and Cultural Heritage Management Plan Implications (the Lewis statement).
The Lewis statement primarily concerned the activity area relating to the mixed use application. It relevantly concluded -
- (a) The western half of this activity area (west of the southern extension of the alignment of Hodgson Street, Kew) had been subject to SGD by industrial activities before the 1950s.
- (b) In the 1950s, the then topsoil or surface rock layer of the ground (the original surface layer) of the eastern half of this activity area was levelled and filled in the mid 1950s to a maximum depth of about 7 m.
- (c) The original surface layer had not been subject to SGD because it was only used as a market garden after European settlement.
- (d) After the eastern half of this activity area was levelled and filled, industrial (liquefied gas works) use of this part of the activity area did not result in SGD of the original surface layer.
- (e) The construction of the two existing buildings in the 1980s may have resulted in SGD to a small area of the original surface layer of the activity area (if deep piles were constructed), but almost all of those works did not result in SGD to the original surface layer.
- (f) The construction of the buildings and works in this activity area will result in SGD to part of the original surface layer, primarily by excavation for the basements.

[106]

I adopt the observations of the Tribunal in Mainstay Pty Ltd v Mornington Peninsula SC[37] that (in summary) -
- the significance of the 'disturbance' is drawn from the definition,
- the 'topsoil' is simply the surface or upper part of the soil,
- the disturbance to the topsoil could involve relatively limited interference, and
- the disturbance must involve machinery and must be in the course of grading, excavating, digging, dredging or deep ripping (applying, for all but deep ripping, the general meanings of these terms).
The reference to 'the topsoil or surface rock layer of the ground' in the SGD definition does not expressly refer to a former topsoil or former surface rock layer. If that layer does, by inference, include those references, there could be uncertainty and additional cost in investigating the existence of a former topsoil or former surface rock layer. These are matters that might be relied upon in finding there is no reference to a former layer.
However, the preferred approach to statutory interpretation beings with context and purpose of the relevant provision. The context is the AH Act. Its purpose is 'to provide for the protection of Aboriginal cultural heritage in Victoria'. One of the mechanisms in the AH Act to implement this purpose is a CHMP. If no part of an activity area is an area of CHS, no CHMP is required.
The Aboriginal Heritage Regulations 2007 (the AH Regulations) confirm that past SGD can make an activity area that might otherwise be an area of CHS to not be an area of CHS. They also confirm that an activity that constitutes SGD can be a high impact activity.
The purpose of SGD under the AH Regulations is to help determine what activities are likely to damage Aboriginal cultural heritage, because of their potential to fundamentally alter the character of 'the topsoil or surface rock layer of the ground', and ought to be subject to a CHMP.
The topsoil or surface rock layer of the ground may be changed over time by natural or man made processes. Natural processes include land slippage, earthquake, water and wind erosion (including coastal recession) or volcanic activity. Man made activities include the matters referred to in the definition of SGD and other machine-based activities or activities involving hand held tools.
I adopt the submissions of AAV that evidence of past Aboriginal occupation typically occurs within the topsoil or former topsoil surfaces sealed by more recent natural sediments and natural soil development. These natural processes do not lessen the significance of any evidence from a cultural heritage perspective. In contrast, the topsoil or surface rock layer created by man made activity is far less likely to yield evidence of cultural heritage.
One man made activity that may or may not involve machines is the filling of land. If fill is merely added to the existing topsoil or surface rock layer, then that disturbance is not SGD. This is clear from the exclusion of filling from the definition of SGD and is consistent the purpose of capturing activities that can fundamentally alter the character of the topsoil. Mere fill does not alter the topsoil in this way and any Aboriginal cultural heritage at or below the surface is unlikely to be damaged.
In Finlay v Surf Coast SC,[38] the Tribunal held that mere filling is not SGD. I agree with that conclusion.
If the 'topsoil or surface rock layer' did not include the 'former topsoil or former surface rock layer', merely placing a small amount of fill (whether or not by machinery) on the whole of an activity area could ensure that area was not an area of cultural heritage significance. Consequently, any high impact activity proposed for that activity area would not require a CHMP. This conduct could defeat the purposes of the AH Act.
I need to clarify my reference to former topsoil or former surface rock layer. It would not be consistent with the purpose of the AH Act if that layer was itself formed by mere fill or other man-made activities. The layer needs to be, as AAV submitted, a 'naturally occurring surface level', where that can be readily ascertained.[39]

[111]

I rely on the evidence of Mr Long in finding that the whole (for all practical purposes) of the topsoil of the eastern part in the 1980s was subject to SGD when the current buildings and works were constructed. However, having regard to my opinion about the meaning of 'topsoil or surface rock layer', this finding is inconclusive.
I rely on the uncontested evidence of Mr Lewis, based on the Respondent's plans, that the activity, in particular the construction of the basements, will project below the layer of fill in certain parts of the activity area. That fact is relevant because if the activity did not project below the fill there could be no disturbance of the former topsoil or former surface rock layer and the activity would not be a high impact activity.
I rely on Mr Lewis' evidence that immediately before the eastern area was filled it was used as a market garden, and that the market garden had existed since Europeans first settled this land. There was no dispute that while the land was used as a market garden it was not subject to SGD.[41]
The final, and determinative issue, is whether the former topsoil (i.e. the topsoil that existed when the land was filled) had been subject to SGD before it was filled. On this issue, the evidence of Mr Long and Mr Lewis diverged.
Mr Lewis relied on historical and comparative information, based on historical documents (including photography), to demonstrate that the former topsoil of the former market garden was not graded or excavated before it was filled.
Mr Long relied on the results of a geotechnical investigation of 677-679 Victoria Street in a report by Golder & Associates to the Respondent dated 24 July 2009.[42] The purposes of the investigation included:
- To evaluate the subsurface conditions at the site relevant to the proposed development, including the presence and depth of fill materials, and the depth of groundwater, if encountered.
- To provide recommendations for building footing design ...
- To provide advice on the likely excavation characteristics of the materials to be encountered during basement and footing preparations.
The method of investigation was the drilling of nine boreholes, seven of which were located in a well distributed way across the eastern part of the activity area. The boreholes were drilled to between 9.6 m and 21.5 m below existing ground level. Core samples were removed for recording and assessment.
Mr Long's evidence was that soils commonly found in market gardens are loose homogenous sandy loams with high humic content to a thickness of 300 mm to 600 mm. If the former topsoil of the market garden had not been excavated, the borelog results would show the existence of that material. In fact, the results were that in none of the relevant seven borelogs was topsoil found between the fill layer and the underlying layers of sand, clay and sedimentary rock.
Mr Long was also of the opinion that, based on the 1904 contours of the eastern area (from MMBW maps provided by Mr Lewis) and the borelog results, that the layer of fill was consistently located 1 to 2 m below those contours. He concluded that:

[116]

(a) Stage 1, level 8 setback increased as generally depicted on SK10.17, drawing title level 8 - Revised Setbacks, dated 23 March 2010;

(b) Stage 1, level 9 setback increased as generally depicted on SK10.18, drawing title level 9 - Revised Setbacks, dated 23 March 2010;

(c) Stage 1, level 10 setback increased as generally depicted on SK10.19, drawing title level 10 - Revised Setbacks, dated 23 March 2010;

(d) Stage 1, roof top bowling green and solar hot water panels reconfigured as a result of condition 1(c);

(e) Stage 3, lobby and bicycle parking area reconfigured to include a café as generally depicted on SK10.10, drawing title Stage 3 Entrance, dated 23 March 2010;

(f) Stage 1, eastern elevation of the convenience shop modified as generally depicted on SK10.11, drawing title Ground Floor South West Corner, dated 23 March 2010;

(g) Stage 1, level 2, podium roof spaces improved to provide usable communal open space as generally depicted on sketch plan title, Garden to Stage 1 Level 2, dated 11 March 2010;

(h) Stage 2, level 4, podium roof space improved to provide usable communal open space as generally depicted on sketch plan title, Roof Top to Stage 2 Level 4, dated 11 March 2010;

(i) Stage 3, level 4, podium roof space improved to provide useable communal open space, generally as provided for podium roof spaces for Stages 1 and 2;

(j) Stage 2, level 2 dwelling 2.01 reconfigured to ensure the bedroom has adequate access to daylight;

(k) Stage 2, level 2 dwelling 2.07 reconfigured so the bedroom has direct access to daylight;

(l) Stage 2, Level 2 dwelling 2.25 bedroom clarified as having direct access to daylight;

(m) The requirements of Melbourne Water conditions 99(b), 99(c), 99(e), 99(f), 99(h), 100 and 101;

(n) The requirements of DSE/Parks Victoria condition 107;

(o) Clear glazing to the east facade of the proposed commercial space fronting Victoria Street in Stage 1 to improve its appearance and casual surveillance of the adjacent public realm;

(p) The façade treatment of the uppermost storeys of the Stages 1, 2 and 3 buildings be the same as that of the typical floors below of the respective building;

(q) All inboard bedrooms in the one-bedroom apartments provided with sliding doors facing the dwelling windows, in addition to sliding doors facing the dwelling corridor;

(r) Design detail of the ground level of the south facing edges of Stage 1 Building 1 and Stage 2 Building 2.

[151]

Prior to the occupation of any part of the development, a car parking management plan prepared by an appropriately qualified traffic consultant must be submitted to and approved by the Responsible Authority. When approved, the car parking management plan will be endorsed and form part of this permit. The car parking management plan may be submitted in stages and must address, but is not necessarily limited to, all of the following:
- (a) An internal signage plan distinguishing permanent parking areas from visitor parking areas, highlighting sub standard spaces are to be for smaller vehicles only, clearly marking all disabled spaces and height clearances;
- (b) Mechanisms to ensure non-permanently allocated car parking spaces will only be available for visitors to the site;
- (c) An internal signal system or alternative safety measure to assist with traffic management at the Level 1, Stage 1 car park entrance and at all "blind aisle" locations within the car parking areas;
- (d) The number and location of the car parking spaces to each commercial tenancy and dwelling, with any tandem parking spaces applied to a single tenant or dwelling and the clear identification of dwellings without any car parking;
- (e) The number and location of car spaces for shared use, including time of shared use.
- (f) The management of visitor car parking spaces and security arrangements for occupants of the development, including details on how the 'Security Line' to the Residential Parking area is to operate and how residential visitors are to access this area. Car park security arrangements must allow for the expansion of the car-share scheme.
- (g) Details of way finding, cleaning, security of end of trip bicycle facilities.
- (h) Policing arrangements and/or formal agreements;
- (i) A schedule of all proposed signage including directional arrows and signage, informative signs indicating location of disabled bays, small parking bays, bicycle parking, exits, restrictions, pay parking system etc;
- (j) Details regarding the management of loading and unloading of goods and materials for the commercial and residential uses; and
- (k) An ultimate master management plan that includes a mechanism for future Owners Corporation involvement in reallocating surplus or underutilised vehicle or bicycle parking spaces.
The master management plan referred to in condition 14(k) must be submitted to the satisfaction of the Responsible Authority within twelve months of completion of the last stage of development.
Prior to commencement of the first stage of the development, the permit holder must make a one off, contribution of a maximum of $20,000 to be used for Council's Strategic Transport Department's modelling assessment/study of local traffic conditions and potential traffic management improvements, to the satisfaction of the Responsible Authority.
The car parking management plan must be implemented to the satisfaction of the Responsible Authority. No alterations may be made without the prior written approval of the Responsible Authority.
Prior to the commencement of the development, the permit holder must pay a bank guarantee to the value of $40,000 to the City of Yarra for future public transport improvements to Victoria Street, Abbotsford. The bank guarantee may be drawn down by Council and used for proposed works by either Yarra Trams, Department of Transport or VicRoads to carry out public transport improvements along Victoria Street, Abbotsford. The bank guarantee will be returned to the permit holder if the transport improvement works are not commenced by the relevant authorities, prior to the occupation of the final stage of the development.

[154]

Prior to commencement of the first stage of development and with approval from Melbourne Water and DSE/Parks Victoria, an updated landscape plan, generally in accordance with the "Tract Masterplan" drawings, dated 5 November 2009 and the Tract "Landscaping Works Package - Permeable paving and Raingarden Mapping - STG1 drawing No 309053 L/D DD01 Rev 00" dated 30 August 2010, must be prepared and submitted to the satisfaction of the Responsible Authority. It must be prepared by a suitably qualified person/firm, drawn to scale, with three (3) copies provided. When approved, the landscape plan will be separately endorsed and will then form part of the permit. The plan must show:
- (a) the location, quantity and maturity of all proposed plants with a full plant schedule of botanical names, common names, mature height & width, plant spacing's, pot sizes and quantities. Proposed planting should be drought tolerant, free from invasive weed species and predominantly consisting of locally indigenous plants.
- (b) Extent of basement car park must be indicated on the landscape plans.
- (c) Additional planting on podium on podium roof top spaces must be incorporated and installed in raised planter beds in heights suitable for the long term growth and establishment of the proposed species. Details of proposed raised planters including heights must be specified on the plans.
- (d) Specific ongoing maintenance requirements of all green walls including installation requirements, watering requirements and suitability of species;
- (e) All pedestrian zones should be DDA compliant. Proposed spot levels, top of wall heights and grades should be indicated on landscape plans;
- (f) Details of the proposed irrigation system ensuring wherever possible, water supply must be from rainwater tanks with water collected from roof runoff. Passive irrigation systems such as rain gardens and water sensitive urban design tree pits must also be included.
- (g) Confirmation that runoff from the site will be filtered through a passive water sensitive urban design treatment system, in compliance with condition 19.
- (h) Tree protection measures must be erected during construction to protect existing trees along the boundary.
- (i) All landscaping works must comply with the Australian Standard for the 'Protection of Trees on Development Sites' (AS 4970-2009).
- (j) The location of any permanent structures, furniture or other facilities;
- (k) Streetscape design for Victoria Street. Any streetscape furniture installed should be consistent with Council's Design Guidelines for streetscapes.
- (l) The public "piazza" to be designed to a public standard (hard wearing materials, has to adhere to Australian standards, DDA, security, etc)
- (m) All public area footpaths, steps, ramps and crossings to comply with DDA - Tactile indicators, nosing's and handrails where necessary.
- (n) Details of all external artwork, including type of art, location to be displayed, timing for incorporation and ongoing maintenance requirements, in accordance with the "Mars Artistic Vision" dated 23 November, 2009.
- (o) All existing trees to be retained, protected from construction works in accordance with the advice of a suitably qualified person/firm;
- (p) Ongoing maintenance requirements of all landscaping works;
- (q) An indicative landscape staging plan outlining the intended stages of landscaping works and the timing and duration of each intended stage.
- (r) Cross section details of the two new connections to the Capital City Trail, ensuring level connection, where possible; and
- (s) Details of all upgrade works and landscaping proposed to be undertaken to the south (front) of the Stage 3 building, adjacent to Victoria Street with inclusion of communal furniture, high quality landscaping and water sensitive urban design features.
Unfettered public access must be maintained through the public "piazza" at all times and the Stage 2 and Stage 3, communal courtyard between the hours of 6:00am and 9:00pm daily, to the satisfaction of the Responsible Authority.
All landscaping must be paid for by the permit holder and then maintained thereafter, by the future Owners Corporation to the satisfaction of the Responsible Authority.
Before construction work commences, a landscaping bond or bank guarantee of no less than 5% of the total landscaping value must be paid to the responsible authority. This bond will be returned in full no later than 6 months after the satisfactory completion of these works and subject to an inspection by the Responsible Authority.
All vegetation marked as being retained, must be retained to the satisfaction of the Responsible Authority.
All landscaping works must be completed in accordance with the endorsed landscape staging plan, prior to occupation of the final stage of development and maintained thereafter to the satisfaction of the Responsible Authority.
Prior to the completion of the development, the permit holder must provide to the Responsible Authority, in writing, a letter from Melbourne Water, confirming that all works have been carried out and completed in a satisfactory manner.
Prior to the completion of the development, the permit holder must provide to the Responsible Authority, in writing, a letter from DSE/Parks Victoria, confirming that all works have been carried out and completed in a satisfactory manner.

[160]

Unless with the prior written consent of the Responsible Authority, no more than 130 seats may be provided for Restaurant 1, to the satisfaction of the Responsible Authority.
Unless with the prior written consent of the Responsible Authority, no more than 125 seats may be provided for Restaurant 2, to the satisfaction of the Responsible Authority.
Unless with the prior written consent of the Responsible Authority, no more than 50 seats may be provided for the café in Stage 3, to the satisfaction of the Responsible Authority.
Unless with the prior written consent of the Responsible Authority, trading is restricted as follows:
- (a) 7am to 11pm, Sunday - Thursday and 7am to 1am the following day, Friday and Saturday, for the restaurants; and
- (b) 7am to 11pm, seven days a week for the café.
No live music is to be played on the premises at any time.
No music other than background music may be played on the premises at any time.
No external speakers are permitted be located outside of the premises at any time.
Bottles must not be emptied into garbage bins after 10:00pm on any night, or before 7:00am on any day unless the activity is inaudible from within any nearby residential premises.
The use must at all time comply with the requirements and undertakings outlined in the endorsed Noise and Amenity Action Plan (NAPP) to the satisfaction of the Responsible Authority.
Noise emanating from the restaurants must comply with the State Environment Protection Policy N-2, to the satisfaction of the Responsible Authority.
Within 6 months of the restaurant and café uses commencing, an acoustic report prepared by a suitably qualified acoustic expert must be submitted to and approved by the Responsible Authority. When approved the report will be endorsed and will then form part of the permit. The report must demonstrate the measures recommended in the endorsed Noise and Amenity Action Plan achieve compliance with the relevant standards to the satisfaction of the Responsible Authority.

[169]

Before the commencement of each stage of the development hereby approved other than works for the purpose of obtaining a Certificate or Statement under Clause (a) or (b) of this condition respectively, either:
- (a) Certificate of Environmental Audit indicating the land in that stage is suitable for residential use must be issued for the land in accordance with Section 53Y 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 Section 53ZS of the Act that the environmental conditions of the land in that stage are suitable for residential use.
A copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
The use and/or development/buildings and works allowed by this permit must comply with the directions and conditions of any statement of environmental audit issued for the land.
Prior to the occupation of dwellings in a stage of the development 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 for that stage have been carried out.
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.
The landowner and all its successors in title or transferees must, upon release for private sale of the parent lot or each of the lots, created by the subdivision, include in the vendor's statement pursuant to section 32 of the Sale of Land Act 1962 annexed to the contract of sale for the sale of the land, a copy of the endorsed development plans, planning permit and statement of environmental audit (together with any later issued certificate of environmental audit) for the land.

[170]

Before any stage of development commences, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval. The plan must provide for or include the following:
- (a) a pre-conditions survey (dilapidation report) of the subject site and all adjacent Council roads frontages and nearby road infrastructure;
- (b) protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site);
- (c) remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site)
- (d) containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside the site, particularly in relation to the interface with the Capital City Trail;
- (e) on site facilities for vehicle washing;
- (f) methods for management of noise and general nuisance;
- (g) site security;
- (h) waste and stormwater treatment;
- (i) construction program;
- (j) preferred arrangements for trucks delivering to the site;
- (k) parking facilities for construction workers;
- (l) delivery and unloading points and expected frequency;
- (m) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
- (n) an emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced; and
- (o) traffic management measures to comply with provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads.
During construction, the following must occur:
- (a) any stormwater discharged into the stormwater drainage system to comply with EPA, Melbourne Water and DSE/Parks Vic guidelines;
- (b) stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;
- (c) vehicle borne material must not accumulate on the roads abutting the site;
- (d) the cleaning of machinery and equipment must take place on site and not on adjacent footpaths or roads;
- (e) all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly;
- (f) all site operations must comply with the EPA Publication TG302/92;
- (g) at no time during the construction of any stage of the development is the Capital City Trail to be obstructed from public use; and
- (h) the permit holder must ensure that at all times, all construction workers and associated development staff are aware of conditions 79 and 80.

[177]

The layout of the site and size, design and location of buildings and works as shown on the submitted plans must not be altered without the prior written consent from Melbourne Water.
Prior to the commencement of any buildings and works, plans and relevant information must be submitted to Melbourne Water addressing Melbourne Water's conditions to the satisfaction of Melbourne Water.
Pollution and sediment laden runoff shall not be discharged directly or indirectly into Melbourne Water's drains or waterways.
The minimum lower ground floor levels for the proposed buildings must be constructed no lower than 11.4 metres to Australian Height Datum.
All entrances and exit points to the basement car park and sub floor areas, for pedestrians and vehicles, must be constructed with surface levels no lower than 11.4 metres to Australian Height Datum.
All ventilation points, including exhausts, must be constructed with openings no lower than 11.4 metres to Australian Height Datum.
All basement and sub floor areas must be protected by a bund or levee with a maximum surface height of 11.4 metres to Australian Height Datum.
Any drainage system to the basement car park and sub floor areas must be designed such that floodwater and stormwater is unable to penetrate the basement.
Prior to the commencement of any buildings and works, a comprehensive Landscape Plan for the subject site must be prepared by a qualified horticulturist/landscape architect and submitted to the satisfaction of Melbourne Water. The landscape plan for the site must indicate the extent to which the riparian fringe along the Yarra River corridor is proposed to be rehabilitated and managed as part of the development. The plans should indicate how vegetation continuity through the site's riparian fringe would contribute to improving habitat along the Lower Yarra River. The plan must also show:
- (a) a survey (including botanical names) of all existing vegetation to be retained and/or removed;
- (b) details of the trees on adjoining sites in close proximity to the site boundaries including incorporated tree protection measures;
- (c) details of a landscape setback/buffer a minimum of 5 metres along the Yarra River frontage of the property;
- (d) details of surface finishes of pathways and driveways;
- (e) details of fencing along the Yarra River boundary;
- (f) a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
- (g) details of all trees to be removed, including all weed species along the embankment; and
- (h) the provision of canopy trees along the Yarra River boundary to assist in the integration of the development with the existing river corridor.
The layout of the site must be designed to allow for a vegetated buffer/setback a minimum of 5 metres wide along the boundary of the property with the Yarra River corridor.
Any new development must be designed to ensure that any walls and fences are largely screened from the waterway by shrubs and ground covers and the skyline is largely formed by tree canopies.
Prior to the commencement of any buildings and works, a Site Environmental Management Plan (SEMP) must be submitted to Melbourne Water for approval. The SEMP must include a site map detailing the location and design of all measures including the following:
- (a) Site controls to be installed during construction;
- (b) Access tracks;
- (c) Spoil stockpiling;
- (d) Tree protection measures;
- (e) Trenching locations; and
- (f) Machinery/Plant locations.
Prior to the commencement of any buildings and works, engineering drawings must be submitted to Melbourne Water for approval, which detail the proposed treatment and works associated with the excavation of the crest and embankment of the Yarra River. The submitted information must include any proposed changes to bank profiles and how the works will be undertaken and managed in the future. The plans should indicate cross sections, proposed retaining wall treatment, fencing, rehabilitation and revegetation of the area disturb and how that will complement the landscape treatments beyond the bank.
Prior to the commencement of any buildings and works, a geo-tech report from a qualified and accredited supplier of such services is required to determine the soil conditions on the crest and bank of Yarra River and especially providing comments on the nature of material on the slopes of the bank. The report should also outline the suitability of the soils to support walls and structures.
Stormwater runoff from the subdivision must achieve State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater as set out in the CSIRO 'Urban Stormwater Best Practice Environmental Management Guidelines 1999'.
Prior to the commencement of works, a separate application direct to Melbourne Water must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.

At a glance

Court

Decision date

Source

Judgment (216 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (1)

Colquhoun & Ors v Yarra CC [2010] VCAT 1710 (21 October 2010)