the following plans TP100.0 (03.03.2005), TP101.0 (09.07.2007), TP102.4 (06.03.2009), DD201 (30.09.2008), DD202 (30.09.2008), DD203 (30.09.2008), DD204 (30.09.2008), DD205 (30.09.2008), DD206 (30.09.2008), DD301.1 (02.12.2008), DD300.4 (02.12.2008), DD301.3 (02.12.2008), DD302.4 (02.12.2008), DD303.5 (02.12.2008), DD304.4 (02.12.2008), DD305.4 (02.12.2008), DD306.2 (02.12.2008), DD307.1 (02.12.2008), DD308.1 (02.12.2008), DD309.1 (02.12.2008) and DD310.1 (02.12.2008), but modified to show:

(c) In Condition 1:

• (i) Delete parts (a), (c), (f) and (g).
• (ii) Re-number remaining parts as required.
• (iii) Add new parts as follows:

The layout of Units 1.18 - 1.20, 2.13 - 2.15, 3.07 - 3.09, 4.08 - 4.10, 508 - 5.10 revised to improve daylight access to the study.

The planter box at the south-eastern corner of the ground level reduced in depth so as to align with the façade of G.05 office/showroom.

Mr J Cicero, solicitor of Best Hooper. Mr M Sheppard urban designer of David Lock Associates gave evidence.

Permit No. MPS/2008/30 was granted at the Tribunal's direction in late 2008.[1] It allows the construction of four offices and a 40 seat café or restaurant at the ground level of a building with four levels of apartments above (61 units). It also allows 20 townhouses. The apartment building was approved at five storeys above a basement. The proposal included a sixth floor that the Tribunal directed be deleted. The proponent seeks to amend the Permit to reinstate a sixth floor with deeper setbacks to the top three levels from Albert Street than the previous design. Amendments are also sought to Condition 1(c) relating to daylight access to studies in some units. Plans that form part of the amendment request address several other matters referred to in Condition 1 of the Permit and propose some other changes such as the north elevation.

Business 2 Zone, Environmental Audit Overlay and Design & Development Overlay (Schedule 8 - 191 - 199 & 201 - 207 Albert Street, Brunswick).

Clauses 11, 12, 14, 15.12, 16.02, 17.02, 18.02, 19.03, 21, 22.02, 22.03, 22.09, 22.10, 22.11, 52.02, 52.06, 52.07, 52.34, 52.35, 52.36 & 65.

The review site is 5,000m2 in area with frontages to Albert, Beith and Lobb Streets. The land is vacant having previously been occupied by industrial/warehouse buildings with multiple undercroft parking areas. An industrial building is to the east of the site. To the south, on the opposite side of Albert Street, are a row of townhouses and Randazzo Park. The Albert Street townhouses are double storey or have an attic style third level. To the west of the review site, on the opposite side of Beith Street, are single storey dwellings and then several small scale commercial/industrial uses. To the north, on the northern side of Lobb Street, are several single storey dwellings and other commercial buildings. Beith Street is one-way while Albert Street is two way.

The site and locality are known to the Tribunal from the previous proceeding and were revisited on 9 May 2009.

1. In 2008, Member Taranto and I considered an Application for Review lodged by Deal Corporation Pty Ltd to use and develop the subject land for a six storey building and two rows of townhouses. The proposal was supported by the Council but opposed by a number of residents living opposite and near to the site. Our decision resulted in Permit No. MPS/2008/30 issuing but required a number of changes including deletion of the top floor of the apartment building to become five storeys.
2. Subsequently, the permit holder has applied to the Tribunal for an amendment to the Permit to add a sixth floor and make other adjustments to the built form based on a revised set of plans. The Council supports the request while Respondent Objectors oppose the Application on grounds that the amendments do not respond to the Tribunal's concerns and would have a detrimental impact on residential amenity and the wider locale.
3. I must decide whether to allow the amendment request.

1. The amendment request is made under Section 87A of the Planning and Environment Act 1987. Section 87A was introduced in September 2007 to give flexibility to amend permits at a permit holder's request. The latitude in such requests is potentially very broad as discussed by Deputy President Gibson in Bestway Group.[2] The test in this request to amend the Permit issued at the Tribunal's direction is, in the words of the Act, if the Tribunal "considers it appropriate to do so" [s. 87A(1)].

Has the policy context changed since the previous proceeding?

1. The circumstances of the subject land and applicable planning controls and policies considered by the Tribunal last year are essentially unchanged with respect to the Moreland Planning Scheme.
2. The planning context that I am bound to consider was discussed at length in the previous decision and there is no need for me to recite it. As summarised in that decision, the tests relating to design and built form provided in the Scheme as relevant to that permit application focus on:
   • whether Clause 43.02 and DDO8's design objectives are met.
   • whether the character policies are met with respect to more prominent built form and an acceptable graduation above the prevailing heights.
   • whether the policies at Clause 22.11 are met that assist to test potential off-site impacts.
3. In addition to those and related Scheme considerations, the following design objectives in DDO8 are central to this amendment request:
   • To ensure that development on the site integrates with the scale of the surrounding area whilst providing for a graduation in building heights across the site.
   • To provide for an appropriate interface with the public realm along Albert Street.
4. The only policy change to which I was referred by Mr Wolfe has been the Council's adoption, in principle, of the Draft Brunswick Structure Plan. That occurred in October 2008. The document was a consultation draft at the time of the previous case. In 2008, it was acknowledged by the Tribunal as being demonstrative of the Council's thinking on a number of matters (including the boundary of the activity centre) but it was not given influential weight in terms of the document's draft built form guidelines and controls. Those guidelines showed the review site as firstly, having a four storey maximum height and secondly, being on a street where there should be a three storey podium with development above to be setback a minimum of 5 metres.
5. I have considered Mr Wolfe's submission with respect to the policy context including use of the adopted guidelines by the Council in its decision-making. However, I also note in the material tendered by Mr Wolfe that the Council has supported some development that exceeds the recommended heights referred to in the Structure Plan. Although the document has standing as an adopted Council strategy, it is still named as a draft. It does not seem to be rigidly applied by the Council in its decision-making. These factors reinforce the point that the heights are a guide. The introduction of height controls, such as through a Design and Development Overlay via a Scheme amendment, would be a stronger indicator of a confirmed Council position. In this context, I do not consider a development on the review site must be limited to four storeys as Mr Wolfe submitted.

What did the Tribunal find in the previous proceeding?

1. The parties referred to the Tribunal's decision and their interpretation of it. I have considered those views. Like many written documents, words can be interpreted in various ways no matter how plainly or clearly the author(s) hopes or believes they have been prepared. The Tribunal's conclusions were (in part as most relevant to the current proceeding):
   • The three level podium to Albert Street was acceptable including in terms of a 200-300mm encroachment above the 10 metres limit.
   • The upper three levels were setback less than 5 metres behind the 10 metre street wall taking into account the protruding and horizontal balcony forms; these were reasons why the Tribunal found the building would appear too close in its south elevation.
   • The visual impact of the top two levels was the most problematic aspect of the design from Albert Street at ground level and would be notable in the near and wider locale.
   • The transition to the existing townhouses that comprise two levels and a third level within a pitched roof was not regarded as acceptable taking into account the proposal's step up to 6 levels, the setbacks from the street at the upper levels (with balconies protruding into the setback above the podium), and solid design elements.
2. The Tribunal concluded in paragraph 44 of Deal Corporation Pty Ltd:

... modifications are required to meet the design objective of DDO8 with respect to integration with the scale of the surrounding area. We may have been accepting of six floors in an apartment building if the upper two levels had been setback further into the site. But, at the setbacks proposed, those levels in particular will be obvious elements in the local setting and, to an extent, would loom over the public realm to the south of the site. With two rows of units in each of the upper three levels, the design can not readily accommodate significant increased setbacks from the street particularly given the position of the lift and stairwells.

Have the amendments requested essentially been considered before?

1. Section 87A enables a permit holder to propose changes that are assessed on their merits. I think the Applicant has fairly read the Tribunal's decision as suggesting there are ways in which a sixth level can be accommodated but that would need more significant and complex design changes.
2. Mr Wolfe pointed out that changes in the amendment plans could have been made by the Tribunal if it had felt that an acceptable outcome would be achieved by setting back the three levels by an additional 3.5 metres.
3. I understand this point but do not agree in this case.
4. The Tribunal's role is to consider the proposal before it and, if a permit application could be acceptable by way of conditions, then it is incumbent on the Tribunal to direct a permit with conditions.
5. Here, the Tribunal did not conclude that simply setting back the three levels was all that was required and thus did not direct such a change. The plans in the amendment request are not limited to moving back the top three floors. Other adjustments that have occurred demonstrate why the Tribunal does not attempt to re-design a building. For example, the lift and stairwells have not changed but corridors and unit positions have. There have also been modifications to the podium and to other elevations. The aim, I assume, has been to regain some floospace lost from increased setbacks that have been achieved from the southern boundary of the site at the building's upper three levels.

Are the requested amendments to the built form appropriate?

1. Having considered the submissions and evidence, I am persuaded that the requested amendments are appropriate. I set out my reasons next.

1. As was the case in the previous proceeding, Respondent Objectors challenged the overall massing and layout of the development. Their primary concerns with respect to the six storey form of the apartment building focused on the impact on residences and Randazzo Park to the south, the lack of similarly scaled development in the area, a failure to graduate heights across the site, and the extent to which the development would stand out.
2. These submissions were challenged by the Council and Applicant including through the evidence of Mr Sheppard.
3. The requested changes result in a sixth level being added in a context where that top floor would be seen from the south side of Albert Street opposite the site and from Randazzo Park. The additional level would be evident in the near and wider area too. Importantly, what the amendments achieve, however, is a much stronger and defined three level podium that would be more obviously separated from the higher element of the apartment building. The face of the upper three levels would be around 8 metres behind the southern façade of the lower three levels when measured to balconies or 9.72 metres measured to the southern façade at those levels.
4. I am satisfied the amendments are acceptable when tested against the design objectives of DDO8, Zone provisions, and local policies such as Clause 22.10. For a strategic redevelopment site, within or abutting the activity centre and urban village, and with a street providing separation to existing residential buildings, the graduation or transition shown in the amendment plans is acceptable. The extra floor would be seen. But, compared with the original proposal presented to the Tribunal, and possibly even with respect to the approved five level design, the setbacks achieve a more recessive outcome. Put another way, the built form would have a less looming or imposing presentation to the southern interface in particular. Moreover, I do not consider there would be unreasonable additional impacts with respect to the public and private realms as a result of the proposed amendments, including with respect to a loss of articulation to the northern elevation that has a much stronger horizontal form in the amendment plans.

1. The amendments would not give rise to shadowing effects to existing dwellings or Randazzo Park that warrant rejection of the changes. The Council submitted that shadowing at the equinox is acceptable while windows would be more than 9 metres from existing windows in dwellings on the south side of Albert Street and around Randazzo Park. I agree.
2. Views to the proposed sixth level would be seen from first and second floor rooms in nearby dwellings but I do not find the visual impact to be unacceptable in the site's strategic and planning contexts.

1. This condition requires modifications to a number of units within a core part of the apartment building to improve daylight access to studies.
2. I am not persuaded to delete the condition and, within a sixth level reintroduced, wording changes are required. At the hearing I indicated one simple way in which the studies' light access could be improved (commenting on the original application plans). That would be by cutting back the bathroom to enable an open corner to the studies with sliding corner glazing being possible. Other options would be possible such as swapping bathroom and study positions. The amendment plans have modified the bathrooms and added a small cupboard to the studies. It would be possible for the layout to revert to that shown in the original plans and make the change I have suggested. The permit holder would be open to explore other options for the Council's approval.

1. This condition requires columns within the one metre ground level setback of Albert Street to be deleted. The columns in the original plans considered by the Tribunal were deeper than shown in the amendment plans so that they protruded further into the publicly accessible space.
2. The Council supports the change shown in the amendment request, and deletion of the Condition, provided a landscape planter is reduced in depth.
3. I am prepared to accept the Council's submission on this point, requiring Condition 1(g) to be deleted and a new part added to Condition 1 to modify the planter.

1. For the above reasons, I will allow the Application in part and will direct amendments to Permit No. MPS/2008/30.

[1] Deal Corporation Pty Ltd v Moreland CC [2008] VCAT 2121.

[2] Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 860 at paragraph 14.