1. Pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998, Catherine Reeves is joined as a party to the proceeding.
2. Pursuant to Section 127 and Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the following plans are substituted for the application plans:
   • 1003 TP00 Rev. A Cover Sheet + Location Page;
   • 1003 TP01 Rev. A Site + Neighbourhood Streetscape Page 1;
   • 1003 TP02 Rev. A Site + Neighbourhood Streetscape Page 2;
   • 1003 TP03 Rev. B Design Response;
   • 1003 TP04 Rev. A Basement 3 Floor Plan;
   • 1003 TP05 Rev. A Basement 2 Floor Plan;
   • 1003 TP06 Rev. B Basement 1 Floor Plan;
   • 1003 TP07 Rev. B Ground Floor Plan;
   • 1003 TP08 Rev. B First Floor Plan;
   • 1003 TP09 Rev. B Second Floor Plan;
   • 1003 TP10 Rev. B Third Floor Plan;
   • 1003 TP11 Rev. B Fourth Floor Plan;
   • 1003 TP12 Rev. B Fifth Floor Plan;
   • 1003 TP13 Rev. B Sixth Floor Plan;
   • 1003 TP14 Rev. B Seventh Floor Plan;
   • 1003 TP17 Rev. B Roof Plan;
   • 1003 TP18 Rev. B East Elevation;
   • 1003 TP19 Rev. B North Elevation;
   • 1003 TP20 Rev. B South Elevation;
   • 1003 TP21 Rev. B West Elevation;
   • 1003 TP22 Rev. B Sections + ESD Principles;
   • 1003 TP23 Rev. A Typical Apartment Layout;
   • 1003 TP26 Rev. B Shadow Diagrams. 9am. September 22nd;
   • 1003 TP27 Rev. B Shadow Diagrams. 11am. September 22nd;
   • 1003 TP28 Rev. B Shadow Diagrams. 3pm. September 22nd;
   • 1003 TP29 Rev. B Material Board;
   • 1003 TP30 Rev. B Streetscape Elevations;
   • 1003 TP21 Rev. B Fence + Screen Details;
   • 1003 TP32 Rev. A Cross Ventilation Diagram;

1. The decision of the Responsible Authority in relation to permit application no. MPS/2010/484 is set aside.
2. A permit is granted in relation to land at 175-179 Sydney Road, Brunswick. The permit will allow
   • Demolition of the existing building;
   • construction of an eight-storey building, plus basements; and
   • use of the land for the purpose of dwellings and offices

• Reduction of the car parking requirements associated with the use of the land for the purpose of shops, offices, restaurant and dwellings.
• Waiver of the loading bay requirement.

1. The permit is subject to the conditions contained in the Appendix to these reasons.

Mr M Naughton, Solicitor of Planning & Property Partners Pty Ltd. He called evidence from:

• Mr A Biacsi, Town Planner of Contour Consultants Australia.
• Mr M Sheppard, Urban Designer of David Lock & Associates.

Demolition of the existing building and the construction of an eight-storey building (plus basements) accommodating 64 dwellings, a 75 seat restaurant, two shops, two offices and associated car parking.

Application under Section 79 of the Planning and Environment Act 1987.

Cl. 34.01-1 (use of land in the B1Z for dwelling and office).

Cl. 34.01-4 (construction of buildings and works on land in the B1Z).

Cl. 43.01-1 (demolition and construction of buildings and works in HO149).

Cl. 43.02-2 (construction of buildings and works in DDO18).

Cl. 52.06 (reduction of the car parking requirement).

Cl. 10, 11, 11.01, 11.04, 15, 15.01, 15.02, 15.03, 16, 16.01, 17, 17.01, 18, 18.01, 18.02, 21, 22.02, 22.05, 22.11, 22.13, 22.15, 34.01, 43.01, 43.02, 52.06, 52.07 and 65.

The review site is located on the south-west corner of Sydney Road and Michael Street in Brunswick. The property has a frontage of 19.22 metres, a depth of 56.98 metres and an overall site area of 1095 square metres. It is presently occupied by a two-storey commercial building. The site forms part of the Sydney Road commercial strip. To the south is a two-storey commercial premises. To the north, on the opposite side of Michael Street is the Brunswick Club- a two-storey building which is currently undergoing buildings and works to convert part of it to dwellings. On the east side of Sydney Road are church buildings and further commercial land uses. Development in the area is predominantly two-storeys. To the west are industrial properties.

We undertook an inspection of the subject site and its surrounds after the hearing.

1. Damfine Pty Ltd & Natzac Pty Ltd applied to the Moreland City Council for a permit to construct a ten-storey development (plus basements) accommodating 85 dwellings, a restaurant, shops, offices and associated car parking. As the Council failed to decide the application within the prescribed period, an Application was lodged with the Tribunal for a review of this failure to grant a permit.
2. Amended plans were prepared by the Applicant and circulated in accordance with the requirements of the Tribunal's Practice Note[2]. Modifications notably included a lowering of the building height to eight-storeys, an increase in the Sydney Road setback of the fifth to eighth floors from 10 metres to 18.3 metres, and a reduction in the number of dwellings from 85 to 64. There is no reduction in the number of car parking spaces provided.
3. The Council resolved to support the proposal on the basis of the amended plans.
4. Objectors to the planning application maintain their opposition to the proposal on grounds relating to height, non-compliance with the Brunswick Structure Plan, heritage, car parking, traffic, and impacts on the amenity of nearby residential properties.
5. In our view, the key issues to be determined are:
   • Is the proposed built form an acceptable response to the physical and strategic context of the site?
   • Is adequate car parking provided, and will the traffic impacts of the proposal be acceptable?
   • Will the development provide an acceptable level of internal amenity for its occupants?
   • Will the development have an unreasonable impact on the amenity of nearby residential properties?
6. Having regard to the submissions and evidence presented, the relevant planning policies, provisions and decision guidelines of the Moreland Planning Scheme and the context of the review site, the Tribunal must decide whether a permit should be granted. We have decided to set aside the Council's decision. Our reasons follow.

What does the Planning Scheme say about the development and use of this land?

1. There is no argument amongst the parties that the review site is a suitable candidate for redevelopment for more intensive purposes. It is in a Business 1 Zone, within an identified Major Activity Centre, on a tram line and within walking distance of the Jewell railway station. A higher density mixed use development, with a significant residential component, is consistent with policies in both the State and Local Planning Policy Frameworks[3]. These policies seek to make greater and more efficient use of existing infrastructure and services and, in particular, direct housing to activity centres. The policies envisage that more intensive development in accessible and well-serviced locations such as this will achieve a number of benefits. These include providing a diversity of housing to accommodate projected population growth, enhancing economic development and viability, and taking advantage of investment in transport, communication, water, sewerage and social facilities.
2. The Planning Scheme also contains policies that promote site responsive development and, specifically, development which makes a positive contribution to its environment [4]. Relevantly, the objective of Clause 15.01-2 is to achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm, while minimising detrimental impact on neighbouring properties. There are a number of policies and strategies which are all aimed at achieving urban design and built form outcomes that enhance the public realm and make the environment more liveable and attractive. Within these there is reference to matters such as architectural quality, safety, the interface with pedestrian spaces and heritage.
3. An interim Design and Development Overlay (DDO18)[5] applies to land within the Brunswick Major Activity Centre. Other than implementing the State and Local Planning Policy Frameworks, the generic purpose of Design and Development Overlays is to identify areas which are affected by specific requirements relating to the design and built form of new development. In the instance of DDO18, the specific design objective to be achieved is:

To ensure that the height and form of new development is compatible with the Brunswick Structure Plan.

1. In respect of the review site, pursuant to the provisions of the Overlay, a permit is not required to construct a building if the overall maximum height of the building does not exceed five-storeys; a two-storey podium is provided to the Sydney Road frontage; and that part of the building above the podium is set back 14 metres from the frontage.
2. As the proposed development does not comply with the height and setbacks specified in the Schedule, a permit is required. Before deciding on an application, the following must be considered, as appropriate:
   • The Brunswick Structure Plan.
   • Whether the site is identified as a landmark site in the Brunswick Structure Plan.
   • The extent to which any application demonstrates exemplary architectural design, and best practice environmental sustainable design.
3. We will refer to relevant policies, provisions and decision guidelines in the following section of these reasons, where we examine the built form of the proposal.

Is the proposed built form an acceptable response to the physical and strategic context of the site?

1. We consider that an important starting point in our assessment is the fact that the DDO does not specify a preferred maximum height for development on the review site. As correctly pointed out by Mr Sheppard, the Planning Scheme does not state that a building on this site must not be more than five-storeys. Nor does it state that a building should not exceed this height. What it does say is that, if a building is five-storeys or less, a permit is not required under the provisions of the DDO[6]. The nominated height, therefore, acts as a permit trigger. Where a building exceeding this height is proposed, a permit is required and discretion is to be exercised as to whether a permit should be granted. In our view, such an assessment should be guided by the relevant policies of the Planning Scheme, the strategic directions of the Brunswick Structure Plan, the decision guidelines of the DDO and, importantly, how the building responds to its context.
2. Before turning to specifically consider whether the proposed eight-storey height is acceptable, we make the following observations about the siting and design of the building:
   • In its response to the historic Sydney Road streetscape, the building extends to the frontage, which is consistent with the siting displayed by adjoining and nearby heritage buildings. Its height at the front boundary reflects the prevailing parapet height and ensures that the scale of this element sits comfortably within the streetscape context. Whilst the design is contemporary, the massing of this component reflects that of existing nearby development. The built form at the frontage also adopts the vertical separation of shop fronts, a common feature of the older buildings in this part of Sydney Road. The louvres on the first floor level facade reflect the horizontality typical of heritage buildings in the streetscape. The canopy over the footpath is comparable in its height and extent to those existing in the street. We agree with the comments of the Council's urban design officers that the facade provides a good balance between emphasising the scale and grain of the Sydney Road streetscape whilst delivering a design that does not pretend to be of the past.
   • The development is designed to appear as two separate building forms. The easternmost two-storey element clearly reads as a component of the Sydney Road streetscape. Its design, appearance, materials, siting and proportions are clearly intended to achieve a built form outcome compatible with the existing development that characterises this section of Sydney Road. From both the north and south along this street, longer range views will perceive the taller element of the building as a distinctly separate component behind the two-storey Sydney Road section, due in part to its eighteen metre setback.
   • Active edges are provided to both Sydney Road and to Michael Street. The ground floor facades of the restaurant, shops and offices are fully glazed, providing both the opportunity to view activity within, and a degree of interaction with the public realm. This is consistent with the design principles and guidelines which encourage active frontages in commercial centres to contribute to the vitality, amenity and safety of these environments.
   • In addition to the ground level interaction with the street, the upper level windows and balconies provide an opportunity for passive surveillance of the adjoining footpaths and road network.
   • A proposed cantilevered canopy to the footpath along Sydney Road responds to the public realm. A similar awning projects three metres from the building out over the footpath along Michael Street, adding to the pedestrian amenity at ground floor level. A second awning structure supporting photovoltaic panels at second floor level serves to visually reinforce the prevailing parapet height of Sydney Road by continuing the strong horizontal element at this level along Michael Street. This device also further moderates the scale of development at its interface with the street.
   • The rear element of the building has a complex building envelope, made up of many geometric forms, varying in size, dimension and materials, which both project and recede. We consider that this somewhat 'busy' treatment will result in a significant level of modulation to the building.
   • The Sydney Road segment of the building displays a far more restrained architectural language, in deference to the heritage values of the streetscape. We note that, according to the City of Moreland Heritage Review, the architectural character of this Precinct derives largely from the intact upper floor facades of the shops which reflect the considerable expansion and growth of the street during the 19th century boom period. For reasons outlined earlier, we consider that this element has been designed to complement this identified heritage character.
   • Ms Fryer and Mr Schaller were concerned that the building would detract from views of heritage buildings like the Town Hall and the Uniting Church at the end of Michael Street. However, the rear section of the building above first floor level is recessed to varying degrees from the street frontage. We consider that this treatment will provide a visually interesting presentation to the street. Indeed, by retreating from the street alignment, the design acknowledges the importance of the eastward vista along Michael Street toward the heritage church buildings on the opposite side of Sydney Road.
3. In the assessment of development proposals, the issue of building height is often contentious, particularly where the building in question is the first to differ in height from those around it. It is one where opinions of acceptability may be significantly divergent amongst the various stakeholders. Within locations which are strategically earmarked to undergo substantial change, such as activity centres, the level of change will often manifest in a development scale which is significantly greater than that which has historically existed. This is one such case. There is no existing development in the vicinity of the review site which is of a similar height.
4. We have formed the view that the proposed height of the building as designed is acceptable in this instance. This is based on a number of considerations.
5. Turning first to the planning framework, it is apparent that the Planning Scheme policies envisage a substantial level of change in this area, given it is a Major Activity Centre. Significantly, the Planning Scheme does not require development in this order of activity centre to be responsive to the character of the surrounding area. This distinguishes development in Major Activity Centres from that in lower order centres[7].
6. According to DDO18, a permit is required to construct a development which exceeds five-storeys on this site. The DDO therefore contemplates that higher development may occur and, relevantly, requires that the exercise of discretion is guided by reference to the Brunswick Structure Plan[8], and the extent to which the application demonstrates exemplary design and best practice environmentally sustainable design.
7. We have not found the Brunswick Structure Plan to be of particular assistance to us in our assessment of the acceptability of the building's height. Although the Structure Plan includes the review site in an area where development should be restricted to five-storeys, it does not identify a strategic justification for this nominated height. The Structure Plan sets a maximum height of five-storeys in all areas of major change (particularly along Sydney Road, Lygon Street and Nicholson Street) while allowing for development of six to seven-storeys on selected sites. It neither provides the reader with any insight into how these heights were determined, nor how they fit into the overall strategic vision for the activity centre. Nor does it indicate that developments which exceed the specified heights will compromise the achievement of the centre's strategic objectives.
8. The Structure Plan states that the maximum heights are a guide based on long term development opportunities and preferred future character for the whole activity centre, and that new development proposals and new overlays will require site context analysis justifying more detailed built form controls. As intended by the Structure Plan, therefore, we will treat the nominated five-storey height as a guide.
9. In relation to setbacks, Figure 1 in DDO18 states that any building must not be visible above the parapet within 14 metres of the street boundary as viewed from the adjacent footpath at 1.6 metres above ground level at the property boundary. Mr Sheppard tabled a sightline diagram which demonstrates that, with the exception of a minor incursion at the fourth floor level, the development complies with this requirement. This arises as a consequence of the 18.3 metre setback of the top three levels from the Sydney Road frontage. Accordingly, in the design and siting of the development, the Applicant has 'compensated' for the additional height by providing a greater setback than nominated under DDO18 to ensure that the desired visual relationship with the buildings in Sydney Road is achieved. We consider this to be an acceptable response to the subject site.
10. The staggered eastern profile of the building moderates its visual impact to both Sydney Road and the eastern portion of Michael Street. The rear of the building will, however, present an almost sheer eight-storey height at its western end. At Sussex Street, the building will be tall and prominent building. In our opinion, the acceptability or otherwise of this design response must be assessed within the context of the strategic directions for this locality (which we have already detailed), the zoning of the surrounding land and its existing development and use.
11. The site's interface to the west, between Sussex Street and the railway line, is with land in the Business 3 zone. This land is occupied by robust, utilitarian industrial forms and activities which do not display any obvious sensitivity. We consider that this environment can reasonably accommodate a development of this height without it manifesting as an unacceptable planning outcome. During the course of our inspection, we did not identify any contextual consideration which would justify a reduction in the height or scale of the development at this interface. Suffice to say that we would have made a different finding if the review site's interface was with residentially zoned and developed land.
12. The decision guidelines also require us to consider the extent to which any development demonstrates exemplary design. While we are somewhat unclear about what precisely this may mean, we agree with Mr Sheppard that the building displays an acceptably high standard of architectural design. It is of a bold, contemporary appearance, it utilises a varied palette of materials and finishes, and is highly modulated to provide visual interest. We also note the different architectural language between the lower Sydney Road portion of the building and the taller element to the rear, which, in our view, responds well to the different aspects of the site context.
13. The Applicant tabled a Sustainability Statement of the development. That Statement identifies the following key ESD initiatives which have been incorporated into the project:
    • Passive solar building design incorporating natural cross flow ventilation to all apartments.
    • Six star energy rating.
    • A solar hot water system.
    • 4kW solar Photovoltaic system.
    • Rainwater harvesting for toilet flushing and irrigation.
14. We were advised that the Council's ESD Engineer has reviewed the proposal and has commended the initiatives. It was suggested that a retractable clothesline be provided in each bathroom to avoid the need for mechanical clothes dryers. This is shown on the amended plans. It is evident to us that ESD considerations have formed part of the design brief for this development, rather than being an 'afterthought', and that particular attention has been paid to how the development can achieve environmentally sustainable outcomes. We are persuaded that the development's ESD initiatives provide further justification in this instance for the exercise of discretion under the DDO18 to allow a greater height than five-storeys. A condition of approval will require that the development is undertaken in accordance with the Sustainability Statement to the satisfaction of the Council.
15. We therefore consider that the proposed eight-storey height is acceptable. Our support for the height, however, should not be taken to mean that any height above five-storeys would represent an acceptable planning outcome for this site. Each site has limits in respect to the height it can reasonably support, having regard to the specific physical and strategic context. For example, we agree with Mr Biacsi that the original 10-storey proposal would have manifested as an overbearing building. We conclude that the amended eight-storey proposal represents the upper-end of an acceptable height for the review site.

Is adequate car parking provided, and will the traffic impacts of the proposal be acceptable?

1. Both Ms Fryer and Mr Schaller raised concerns regarding the car parking and traffic impacts of the proposal. The development is to accommodate a total of 85 car spaces in the basement levels. It is proposed to provide one car space for each of the 64 dwellings, one visitor car space and 20 spaces for the commercial uses. Council's Traffic Engineers have not raised any objection to the car parking provision, and the Applicant tabled a Transport Impact Assessment report prepared by GTA Consultants which supported the proposed car parking numbers.
2. All the dwellings will comprise either one or two bedrooms. No three-bedroom dwellings are proposed[9]. In view of this, and the site's location within an activity centre with access to public transport, we consider that the provision of one car space per dwelling is acceptable. Indeed, this is consistent with the rate nominated at Clause 55.03-11 which, although not applicable in this instance, we consider to represent a reasonable rate for the car parking provision in locations such as this.
3. The GTA report indicates that the peak visitor car parking demand for multi-unit developments is "generally in the region of 0.12 spaces per dwelling", generating a requirement for 8 spaces. The report does not provide any details of the empirical studies from which this rate is derived, nor was the author of that report called to give evidence. Although accepted by the Council, this rate has not been substantiated by the Applicant. Notwithstanding, this is not material to the outcome of this Application as, even if a rate of 0.2 visitor car space per dwelling[10] is utilised, we are satisfied that there are adequate publicly available car spaces to accommodate the demands of residential visitors.
4. The GTA report states that, in combination, the restaurant, shops and offices will generate a requirement for 32 car spaces. This was calculated on the basis of 3.32 spaces per 100 square metres for the offices; 2.3 spaces per 100 square metres for the shops; and 0.3 space per seat for the restaurant. Again, details of the source of these rates were not provided. Based on our experience, the office and restaurant rates appear to be reasonable within the context of an activity centre. The rate for the shop, however, appears to us to be low. We consider that a rate of 3.5-4.0 spaces per 100 square metres is a more realistic rate and note that it is similar to the rate specified in the report of the Advisory Committee appointed to review the car parking provisions of the Planning Scheme. When this rate is applied to the proposed shop floor area, it generates a requirement in the order of 6 - 7 spaces.
5. Accordingly, the car parking requirements for the development are:
   • 7 car spaces for the 170m² of shop floor area;
   • 5 car spaces for the 165m² of office floor area;
   • 22.5 spaces for the 75 seat restaurant; and
   • up to 13 car spaces for the dwellings' visitors.
6. In total, therefore, the non-residential component of the development plus the visitor car parking is likely to have a demand for 48 spaces. As 21 of these will be provided on the site, this leaves a shortfall of 27 spaces. The survey data in the GTA report (which includes all public car parking within 100 metres of the review site, both on-street and off-street) indicates a minimum vacancy of 180 car spaces. No data to contradict this was provided by any of the parties, and importantly, it was not challenged by the Council's Traffic Engineers who reviewed the proposal. We are satisfied that the shortfall of 27 car spaces can be accommodated in the available public car parking areas in the vicinity of the review site.
7. We have not been provided with any evidence to demonstrate that the proposed traffic generation will have an unacceptable impact on the surrounding street network. To the contrary, the Council's Traffic Engineers have not raised any concerns regarding the proposal's traffic impacts, and the GTA report concludes that there is adequate capacity in the surrounding street network to cater for the traffic generated by the development. On this basis, we consider that the development will not have an unacceptable impact on local traffic conditions.

Will the development provide an acceptable level of internal amenity for its occupants?

1. We are generally satisfied that the development has been designed to provide an acceptable level of internal amenity for its occupants. We commend the attention given by the architects to light and ventilation to both habitable rooms and shared corridor areas. Due to the absence of sensitive interfaces, there is a minimal requirement for the screening of windows, and consequently each room is provided with an outlook. Lift access is provided to all levels, and selected dwellings are designed to be accessible to persons of limited mobility.
2. In our opinion, the amenity and functionality of the development could be improved by modifications to the dimensions of the balconies.
3. The policy at Clause 22.11[11] states that balconies should have a minimum width of 1.6 metres and a minimum area of 8 square metres. Many of the proposed balconies have a minimum dimension of 1.27 metres and an area of 6 square metres. We see no compelling reason to depart from the policy in this instance. While some of the dwellings may be relatively small, the external area provided by the balcony makes an important contribution to the amenity of these dwellings. In our view, the useability of the balconies will be significantly enhanced by an increase in their width and area to meet the policy. Our review of the plans indicates that there is enough scope to achieve this without compromising the design of the development or its relationship to its context. We have included a condition to require more usable balconies. We note that the drawings identify screens to mitigate any internal overlooking between apartments. We consider that screens to the decks of apartments 35, 45, 50, 54, 56 and 64 are not required, as either the adjacent decks are already screened, and/or the angle of vision is acute. However, it may be necessary to reconsider screening of decks once they are enlarged in accordance with the condition.

Will the development have an unreasonable impact on the amenity of nearby residential properties?

1. The review site has no direct residential abuttals. It will be in excess of 20 metres away from the nearest residential properties - being that on the north-western corner of Michael Street and Saxon Street, and the proposed residential conversion of the Brunswick Club building. This distance exceeds the minimum 9.0 metres referred to in Clause 22.11 and will limit direct views into habitable rooms and secluded private open space areas. Screening of windows and balconies is not necessary in this instance.
2. Shadows from the development will be cast on Saxon Street, Sydney Road and surrounding non-residential properties. They will not affect any residential land and we consider therefore that the extent of overshadowing is acceptable. We note that, due to the setbacks from Sydney Road, there will be no additional shadows cast on this road during the equinox period between the hours of 9.00am and 3.00pm.
3. The objectors to the height of the development, who live in nearby Manalluk Street were concerned that the proposed building would dominate the skyline behind lower dwellings. Whilst the eight-storey height will result in the development being visible from a number of nearby residential properties, we consider that it is sufficiently removed to not have an overbearing effect on the outlook and amenity of these sites. This assessment is made having regard to the site's location in an area which has been identified in the policies of the Planning Scheme for substantial change, and where multi level development will increase over time.

1. The Council prepared and circulated draft planning permit conditions. These were discussed with the parties at the conclusion of the hearing.
2. One of the conditions requires the developer to make a contribution toward streetscape works in Sydney Road and Michael Street to a maximum value of $120,000. We are not persuaded that this is an appropriate planning permit condition. The works are extraneous to the review site, and while they may be desirable, we were not provided with any evidence or submissions to demonstrate that they are necessary in order to make the development acceptable within its context. The Applicant has agreed to the works (which, we observe, are not specified in the condition and it is therefore unclear what is expected) and has no objection to the condition.
3. Notwithstanding, we are not convinced that this matter should form the basis of a permit condition. If specific works were nominated, and it was demonstrated that the development's acceptability was reliant upon these works being undertaken, then we may have formed a different view. As it stands, however, we are not persuaded that there is sufficient nexus between the proposal and the streetscape works to justify the condition. It appears to us that the works are intended to enhance the public realm - an outcome which is undoubtedly desirable in its own right, rather than one which is a direct response the development and its impacts. If this is a matter which the Council and the Applicant wish to pursue, then it is open to them to do so by agreement outside the planning permit process.
4. The Applicant opposes the Department of Transport requirement for the preparation and implementation of a Green Travel Plan. This opposition is primarily based on the question of the condition's enforceability. In this respect we were referred to two Tribunal decisions[12] where, in both cases, the Tribunal expressed reservations about the practicability and enforceability of travel plan conditions, and did not include them in the permits that it granted.
5. While we acknowledge the Applicant's concerns, we note that the GTA Report upon which the Applicant relies in support of a reduced car parking requirement makes specific reference to the existence and use of sustainable transport infrastructure in the locality. The GTA report states that a Green Travel Plan should be prepared for the development to assist residents in utilising the 'multitude of sustainable transport options available to the site'. A Green Travel Plan is included as an Appendix to the GTA Report.
6. Given that, in this instance, a Green Travel Plan forms part of the Applicant's overall justification for the reduction of the car parking requirement, we are not persuaded that the condition should be deleted. Even if this were not the case, we do not think that a requirement to provide purchasers with information on alternate modes of transport, public transport tickets and details of bicycle parking locations on the land is an onerous one which would impose an unreasonable burden on an Owner's Corporation.
7. A suggested condition requires the inclusion of advertising sign details on the plans submitted for endorsement. No details of any proposed signs were provided. Given the site's location within a Heritage Overlay, the construction and display of a sign is subject to a permit. As permission for the display of advertising signs has not been sought, it would not be appropriate to authorise this through a secondary consent process when a permit for the display of the signs has not been obtained. We will not include this condition.
8. We do not have any evidence that the Disability Discrimination Act (DDA) Compliance Statement prepared by MGAC Pty Ltd meets the relevant legislative requirements. We will delete reference to this document in the permit conditions and, instead, require that disabled access to the building is provided to the satisfaction of the Responsible Authority.

1. For these reasons, we conclude that the proposal represents an acceptable planning outcome for the review site.
2. We will therefore set aside the decision of the Responsible Authority and direct the grant of a permit.

• Demolition of the existing building;
• construction of an eight-storey building, plus basements; and
• use of the land for the purpose of dwellings and offices

• Reduction of the car parking requirements associated with the use of the land for the purpose of shops, offices, restaurant and dwellings.
• Waiver of the loading bay requirement.

1. Before the use or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans identified as TP04 Revision A Basement 3 Floor Plan; TP05 Revision A Basement 2 Floor Plan; TP06 Revision B Basement 1 Floor Plan; TP07 Revision B Ground Floor Plan; TP08 Revision B First Floor Plan; TP09 Revision B Second Floor Plan; TP10 Revision B Third Floor Plan; TP11 Revision B Fourth Floor Plan; TP12 Revision B Fifth Floor Plan; TP13 Revision B Sixth Floor Plan; TP14 Revision B Seventh Floor Plan; TP17 Revision B Roof Plan; TP18 Revision B East Elevation; TP19 Revision B North Elevation; TP20 Revision B South Elevation; TP21 Revision B West Elevation; TP22 Revision B Sections + ESD Principles; TP23 Revision A Typical Apartment Layout; TP29 Revision B Material Board; TP30 Revision B Streetscape Elevations; TP21 Revision B Fence + Screen Details, all Job Number 1003, prepared by Daryl Pelchen Architect, but modified to show:

(b) The bike storage area adjoining Saxon Street provided with entry from within the building rather than from Saxon Street.

(c) The location of any substation required by the relevant power company for this development. Any substation must be incorporated within the building (i.e. not free standing or pole mounted in the street) to ensure minimal impact on the visual amenity of the public realm.

(d) Any design details or modifications to the plans arising from the recommendations of the approved Acoustic report (refer to Condition No. 3 of this permit).

(e) A schedule of all proposed exterior decorations, materials, finishes and colours, including colour samples (3 copies in a form that can be endorsed and filed).

(f) Bicycle parking areas dimensioned in accordance with the specifications of Bicycle Victoria's Bicycle Parking Handbook.

(g) A schedule specifying the allocation of car spaces. One car space must be allocated to each of the dwellings.

(h) A minimum width of 1.6 metres and a minimum area of 8 square metres for all balconies/decks.

1. The owner of the land must retain Daryl Pelchen Architects to provide architectural oversight of the delivery of the detailed design, as shown in the endorsed plans and endorsed schedule of materials and finishes, during construction unless with the prior written approval of the Responsible Authority.

1. Before the development starts, a report prepared by a qualified Acoustic Engineer, to the satisfaction of the Responsible Authority, must be submitted to, and approved in writing by, the Responsible Authority. The report must outline specific noise attenuation measures to minimise the impact of noise from the adjacent arterial road and tram route on the development.

The development must be constructed in accordance with the recommendations contained in the approved Acoustic report to the satisfaction of the Responsible Authority.

1. The Waste Management Plan prepared by Leigh Design Pty Ltd dated 2 June 2010 must be implemented and complied with at all times to the satisfaction of the Responsible Authority, unless amended with the further written approval of the Responsible Authority.
2. All waste / recycling areas and stores must be provided with ventilation in accordance with Australian Standard AS1668 to the satisfaction of the Responsible Authority.

1. The development must be undertaken in accordance with the Sustainability Statement prepared by Ark Resources dated 8 September 2010 to the satisfaction of the Responsible Authority. No alterations to the Sustainability Statement may occur without written consent of the Responsible Authority.
2. Before any dwelling is occupied, a report from the author of the Sustainability Statement required by Condition No. 6 of this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Sustainability Statement have been implemented.

1. Subject to Condition No. 9 of this permit, before the development starts, the owner/developer must submit to the Responsible Authority an environmental site assessment report prepared by a suitably qualified environmental professional in accordance with the Potentially Contaminated Land General Practice Note (Department of Sustainability & Environment June 2005) to the satisfaction of the Responsible Authority. The report must include recommendations as to whether the condition of the land is such that remediation works/management measures are required and whether an Environmental Audit should be conducted, taking into consideration the proposed use. The owner/developer must comply with the findings of the site assessment to the satisfaction of the Responsible Authority including, if required, the preparation of an Environmental Audit.
2. The following works can be carried out before the requirement in Condition No.8 is satisfied:

(a) Buildings and works that necessarily form part of the environmental site assessment process, and

(b) Building and works that the environmental professional engaged by the owner/developer advises must be carried out before an environmental site assessment can be prepared.

1. lf pursuant to Condition No. 8 of this permit an Environmental Audit is required, then before the development starts either:

(a) A Certificate of Environmental Audit for the land must be issued in accordance with Section 53Y of the Environment Protection Act 1970 and provided to the Responsible Authority; or,

(b) An Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must make a Statement in accordance with Section 53Z of that Act that the environmental conditions of the land are suitable for the use and development that are the subject of this permit, and that Statement must be provided to the Responsible Authority.

Where a Statement of Environmental Audit is issued for the land, the buildings and works and the use(s) of the land that are the subject of this permit must comply with all directions and conditions contained within the Statement, to the satisfaction of the Responsible Authority.

Where a Statement of Environmental Audit is issued for the land, before the development is occupied and/or the use starts, and before a Statement of Compliance is issued under the Subdivision Act 1988, and before an Occupancy Permit is issued under the Building Act 1993, written confirmation from an Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 that the directions and conditions contained within the Statement have been satisfied must be provided to the Responsible Authority, to its satisfaction.

Where a Statement of Environmental Audit is issued for the land, and any condition(s) of that Statement require(s) any maintenance or monitoring of an ongoing nature, the owner(s) must enter into an Agreement with Council pursuant to Section 173 of the Planning and Environment Act 1987 to ensure compliance with the condition(s). Where a Section 173 Agreement is required, the Agreement must be executed before the use starts and/or the development is occupied and/or, a Plan of Subdivision is certified under the Subdivision Act 1988. All expenses involved in the drafting, negotiating, lodging, registering and execution of the Agreement, including those incurred by the Responsible Authority, must be met by the owner(s).

1. The following buildings and works can be carried out before a Statement of Environmental Audit or a Certificate of Environmental Audit is provided to the Responsible Authority under Condition No.10:

(a) Buildings and works that necessarily form part of the environmental audit process, and

(b) Building and works that the environmental auditor engaged by the owner/developer advises must be carried out before a Statement of Environmental Audit or a Certificate of Environmental Audit can be issued.

These works must be carried out in accordance with a works plan approved by the environmental auditor engaged by the owner/developer. A copy of the works plan must be provided to the Responsible Authority before the development starts.

1. Before the use of the land starts and/or the development is occupied, a Green Travel Plan must be prepared to the satisfaction of the Responsible Authority following consultation with the Department of Transport (Public Transport Division). The Plan must be prepared by a suitably qualified person and must encourage the use of non private vehicle transport modes by the occupiers of the land. The Plan must include, but not be limited to the following:

(a) A description of the location in the context of alternate modes of transport and objectives for the Green Travel Plan;

(b) Outline Green Travel Plan measures for the development including, but not limited to:

(i) household welcome packs - tram, train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers upon a purchaser's occupation of a dwelling;

(ii) include a minimum of 10 by 2 hour metcard (zone one) within the household welcome pack or a myki rail pass (of equivalent value) and registration information;

(iii) bicycle parking and facilities available on the land;

(c) A plan showing the bicycle parking areas to be provided for use by residents;

1. The Green Travel Plan must not be amended without written consent of the Responsible Authority following consultation with the Department of Transport (Public Transport Division).
2. Once approved the Green Travel Plan must form part of the planning permit and any ongoing Management Plan for the land to ensure the Green Travel Plan continues to be implemented by residents / owners to the satisfaction of the Responsible Authority.
3. The permit holder must take all reasonable steps to ensure that disruption to tram operation along Sydney Road is kept to a minimum during the construction of the development. Foreseen disruptions to tram operations during construction and mitigation measures must be communicated to Yarra Trams and the Director of Public Transport fourteen days (14) prior.
4. The permit holder must ensure that all track, tram / rail overhead and supporting infrastructure is not damaged. Any damage to public transport infrastructure must be rectified to the satisfaction of the Director of Public Transport at the full cost to the permit holder.

1. Before the development starts a Construction Management Plan must be submitted to, and approved in writing by, the Responsible Authority. The Construction Management Plan must include, but not be limited to:
   • (a) hours of demolition and hours of construction;
   • (b) dust management;
   • (c) parking and traffic movement of all workers' vehicles and construction vehicles;
   • (d) works timetable;
   • (e) any impacts upon adjacent roads and footpaths. Provision must be made for adequate movement and circulation of vehicles and pedestrians adjacent to the land during the construction phase;
   • (f) access routes for construction vehicles;
   • (g) proposed parking and standing locations for construction vehicles and construction workers vehicles;
   • (h) temporary fencing works;
   • (i) number of workers expected to work on the site at any time;
   • (j) methods for limiting escape of dust and litter from the land;
   • (k) a communication strategy for advising the Responsible Authority and the owners & occupiers of surrounding properties of key stages/events (including their timing and duration) in the construction program of the development;
   • (l) a liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced.

The development must be undertaken in accordance with the approved Construction Management Plan to the satisfaction of the Responsible Authority.

1. The use and development as shown on the endorsed plan(s) must not be altered or modified unless with the further written approval of the Responsible Authority.
2. All pedestrian paths and access lanes shown on the endorsed plans must be constructed and maintained to the satisfaction of the Responsible Authority.
3. Provision must be made for disabled access into the building, to the satisfaction of the Responsible Authority.
4. All telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the Responsible Authority.
5. A mailbox must be provided for each of the premises, to the satisfaction of the Responsible Authority.
6. Bicycle signage at least 300mm wide and 450mm high showing a white bicycle on a blue background must be erected in the residential foyer and the front door of the shops, offices and restaurant directing cyclists to the location of the bicycle parking.

1. Before the development is occupied, a vehicle crossing must be constructed in every location shown on the endorsed plans to a standard satisfactory to the Responsible Authority.
2. Before the development is occupied, any existing vehicle crossing not being used in this development must be removed and the kerb and channel, footpath and nature strip reinstated to the satisfaction of the Responsible Authority.
3. Before the development is occupied, access to the site, any vehicle crossover and any ancillary road and road drainage works must be constructed in accordance with any requirement of the Responsible Authority.
4. Before the development is occupied any Council or service authority pole or pit within 1 metre of a proposed vehicle crossing must be relocated or modified at the expense of the permit holder to the satisfaction of the Responsible Authority and the relevant service authority.
5. Before the development is occupied, the footpath must be constructed to Council's standards using construction plans approved by Council and the works must be supervised by Council.

1. The car parking spaces provided on the land must be solely associated with the development allowed by this permit and must not be subdivided or sold separate from the development.
2. The area set aside for the parking of vehicles and access lanes shown on the endorsed plan must, to the satisfaction of the Responsible Authority:

(a) be completed before the development is occupied

(c) be properly formed to such levels that it can be used according to the endorsed plan

(e) have the boundaries of all vehicle parking spaces clearly marked on the ground to accord with the endorsed plan

(f) not be used for any other purpose other than the parking of vehicles.

1. A sign not exceeding 0.3 square metres directing drivers to the area set aside for vehicle parking on the site must be provided to the satisfaction of the Responsible Authority.
2. Before the development is occupied, an automatic, remote-controlled door must be provided to the car park entry, to the satisfaction of the Responsible Authority.

1. All stormwater from the land, where it is not collected in rainwater tanks for reuse, must be collected by an underground pipe drain approved by, and to the satisfaction of, the Responsible Authority.
2. Before the development starts, a legal point of discharge must be obtained, and where required, a stormwater drainage plan showing how the site will be drained from the property boundary to the stated point of discharge must be submitted to and approved by the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:

(a) the development does not start within two (2) years from the date of issue of this permit;

(b) the development is not completed within four (4) years from the date of issue of this permit;

(c) the use does not start within four (4) years from the date of issue of this permit.

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

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[2] Planning and Environment List Practice Note 1 (PNPE1)

[3] Clauses 11, 11.01, 16.01, 21.04 and 22.02.

[5] Interim Brunswick Major Activity Centre Height Limit Area - Sydney Road and Upfield Corridor

[6] Although a permit will still be required if the setback requirements are not met.

[7] Refer to Clause 11.04-2, which includes a strategy of encouraging higher density housing in Neighbourhood Activity Centres that is designed to fit the context and enhances the character of the area.

[8] The requirement to consider the Structure Plan is also detailed in Clause 22.15 (Brunswick Activity Centre Policy).

[9] Although the plans refer to a '2 bed + study type' dwelling, this form of dwelling comprises of two bedrooms and a desk within the living/dining area. It does not include a separate room which will be used as a study.

[10] As provided for in Clause 55.03-11 which, although not applicable to this proposal, has been used by Councils and the Tribunal in the assessment of visitor car parking for these types of developments. The use of this rate generates a requirement for 13 visitor car spaces.

[11] Development of Four or More Storeys.

[12] The First Stone Pty Ltd v Darebin CC [2009] VCAT 1472 and Merri Merri Developments Pty Ltd v Darebin CC (red Dot) [2010] VCAT 1045