J and M. Burum, H Clucas, K Bastos, F Hastings, H and G Tsiafidis, V Flynn.

Design Consortia Australia v Yarra CC [2009] VCAT 2573

1. The permit application plans are amended by substituting the following plans filed with the Tribunal:

1. The decision of the Responsible Authority is set aside.
2. In permit application Pl08/0817 a permit is granted and directed to be issued for the land 4-16 Garfield Street, Richmond on the conditions set out in Appendix A. The permit allows:
   • The development of land for a residential apartment complex of up to nine storeys over two basements and a reduction in the car parking requirement.

• Mr Rob Milner, town planner, CPG Australia Pty Ltd
• Mr Mark Sheppard, urban designer, David Lock and Associates

Mr Terry Montebello, solicitor, of Maddocks lawyers.

• He called, as expert witness, Mr Andrew Hutson, architect.

An apartment complex comprising two apartment buildings over two basements containing a total of 138 apartments, 174 car parking spaces and 42 bicycle parking spaces. Sixty apartments have one bedroom and seventy-eight apartments have two bedrooms.

The east wing of the complex will contain 30 apartments in a building generally three storeys in scale with a maximum height of 12 metres. The ground and first level will extend to the rear southern boundary while the second level is to be setback 3.8 metres. The ground and first floors are also to be constructed to the eastern boundary and the third level setback 4.4 metres.

The west wing is to contain 108 apartments in a nine-storey building. It has a height of 29 metres and is set back to Garfield Street by 1.13 metres at ground and first floor levels, 3.1 metres at levels 3 and 4 and 5.5 metres at the levels 5 to 8.

Levels 1 to 4 of the western building will abut the western boundary, and levels 5 to 8 are to be set back 3.7 metres from this interface.

There is to be a central landscaped area between 10 metres and 14 metres in width between the two apartment buildings. Internal balconies overlooking this access way are separated by 8.25 metres.

The two basements are to be accessed from Garfield Street, with the upper level of basement protruding 1.2 metres above ground at the frontage.

Review pursuant to Section 79 Planning and Environment Act 1987 of Council's failure to grant a permit.

Part Mixed Use Zone (MUZ) re parcels 2, 3 and 4

Cl. 32.01-4 (more than one dwelling on a lot in a R1Z).

Cl. 32.04-5 (more than one dwelling on a lot in a MUZ).

Cl. 18.02 - Car parking and public transport access to development.

Cl. 21.08-9 North Richmond area (area north of Bridge Road)

The review site is located on the south side of Garfield Street, Richmond, a short distance east of Regent Street and west of Shelley Street. The western side abuts the Clifton Hill railway line.

• Parcel 1 - 16 Garfield Street, with an area of 190 square metres. Parcels 2, 3 and 4 - 4 to 14 Garfield Street.
• Parcels 2, 3 and 4 together form a rectangle that is occupied by a vacant industrial building and have a combined area of 3,235 square metres. Parcel 1 is a small residential site attached, like an appendix, to the north-eastern corner of the larger rectangle.

The review site has a total area of about 3,400 square metres and falls from the north to the south.

We inspected the site during the hearing on 20 October 2009.

1. Design Consortia Australia proposes to construct a 138-dwelling apartment complex on a large site. The complex would consist of two blocks of buildings on either side of an area of open space. The eastern block, which abuts the rear of traditional housing, would be three storeys and the western block, which abuts a railway line, would rise progressively from two storeys at its southern end to nine storeys at its northern end. A permit has already been granted for this site to be developed with an apartment complex of 65 dwellings that would rise to seven storeys at its north-western corner.
2. Council objected to the addition of two storeys above the already approved seven storeys. It was also concerned with the inadequate setback of the building's highest, northern portion from Garfield Street and certain details affecting Garfield Street pedestrians. Parties and experts also identified a number of minor design issues that we needed to address, particularly relating to the proposal's internal amenity.

1. Mr Cicero asked the Tribunal to approve the substitution of amended plans. No parties objected to this request.
2. We directed that the plans circulated in September 2009, being drawings nos. 08251-TP03 to 08251 TP23 inclusive, are substituted for the permit application plans.

1. The review site forms part of an industrial precinct that has a mix of active and vacant industrial premises. Land to the west and the north is used for smaller scale industrial and office activities. The industrial premises are generally single storey buildings with a height in the order of 7 to 8 metres. Industrial buildings abutting to the south have been converted to residential dwellings within the industrial built form. The land abutting to the west is used for the Epping/Hurstbridge railway line, which is on a raised embankment of approximately 4 metres. Land to the west of the railway line is also used for industrial and office purpose, although some of these premises have been converted to residential uses.
2. The land to the east and west of Shelley Street is used for dwellings, comprising a largely intact single built form of single storey cottages with hipped roofs. Two and three storey flats are interspersed through this area.
3. The review site is located within a five to seven minute walk to the North Richmond train station and the Victoria Street major activity centre and tram routes to Melbourne's CBD. It is within a 10 to 15 minute walk to Bridge Road activity centre, the Epworth Hospital and the tram routes to the City. The West Richmond Primary School is close to the site. The precinct has little public open space, although Powlett Reserve and Darling Square located to the west of Punt Road, are within a short distance of the land.

1. Planning permit PL07/0581 was issued for this site at the direction of the Tribunal (Vuricane Pty Ltd v City of Yarra and Ors, P124/2008) as the result of a mediation process[1]. The permit allows the construction of a three, four and seven story building containing 65 apartments and a reduction in the required car parking.

1. Council required this permit application to be advertised, resulting in nine objections which raised such concerns as:
   • Built form including height, visual bulk, setbacks, open space and landscaping.
   • Impacts on amenity including overshadowing, access to daylight, noise and loss of views.
   • Impacts on traffic levels and car parking within the locality.
   • Development of a site likely to be contaminated.
2. Council referred the permit application to internal and external advisers:
   • Internally - traffic, refuse collection and engineering services. No objections were received from a traffic or parking viewpoint. Changes are sought to the ramp gradient and the waste management arrangements.
   • Externally - to the Department of Transport, which did not object, subject to the inclusion of conditions relating to acoustic attenuation and submission of details to ensure that no disruption occurs to rail operations.
3. Council also sought advice from Mr McGauran, an urban design expert. His original advice raised concerns about a number of design details and inadequate setbacks of higher sections of the building. He supported a "medium rise tower form" on the western side of the site, "subject to higher quality design resolution". In response to the amended plans, he commented positively on most changes. His only specific recommendations related to matters of detailed design affecting two dwellings.
4. Council determined that had the application for review not been lodged it would have refused it on the following grounds:

The development, through height, scale and design detail is inappropriate for the neighbourhood context and fails to comply with objectives contained in policy at clause 19.03 (Design and built form) and clause 22.10 (Built form and design) of the Yarra Planning Scheme, and objectives of DSE Guidelines for higher density development 2004.

The proposal does not positively contribute to the built form character of the surrounding area as required by policy at clause 21.05-1 (Element 1: Urban design framework) and clause 21.05-2 (Element 2: Residential land use and development) of the Yarra Planning Scheme.

The use of a sub basement results in a development that fails to enhance the visual experience and personal safety of pedestrians using Garfield Street.

1. The parties generally agreed that the review site and its environs is a transition area and that the industrial uses will progressively be replaced with higher density residential development. It was agreed that this area is strategically well located for higher density housing, given its convenient proximity to the Victoria Street activity centre, and the public transport services available along Victoria Street, Punt Road and at North Richmond station.
2. The parties agreed that many of the particular design concerns identified in the permit application process had been satisfactorily resolved in the substituted plans. Matters not disputed by the parties include the advantages of more intense residential development that flowed from the site's convenient proximity to Victoria Street Activity Centre and fixed rail. The parties accepted the proposal as being suitable with respect to traffic circulation, car parking arrangements, internal amenity for residents (except for some dwellings) and attenuation of noise from the adjacent to the railway line. Height and form on the eastern and southern boundaries and absence of overshadowing of neighbours were also largely agreed. There was agreement that greater massing could be accommodated on the north and western parts of the site, adjacent to the train line. We are generally in support of the overall approach to the siting and massing of the proposed development and have no concerns with traffic, car parking, interfaces with adjoining dwellings and the acoustic attenuation to be provided in the development.

Are an additional two storeys acceptable on this site?

1. The proposal for an additional two storeys above the seven storeys already approved raises two issues: whether the extra height complies with local policies that seek to proscribe strategic development sites where high buildings would be acceptable; whether the extra height is acceptable within its local setting, a matter of urban design per se. We have concluded that this site is a strategic redevelopment site, where additional height is acceptable, and that the proposal satisfies the necessary urban design criteria within its locality to justify the extra height.
2. There are a number of State and local strategies and policies that are relevant to our decision on this issue.
3. Clause 12.01-2 Strategies - housing sets out criteria that identify strategic redevelopment sites and requires Councils to:

Locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport by (in part):

• Encouraging higher density housing development on sites that are well located in relation to activity centres and public transport.
• Identifying strategic redevelopment sites for large residential development ...

1. Figure 2 of the Yarra Planning Scheme maps a number of strategic redevelopment sites but these do not include the subject site. In Figure 22 the site is identified as being in a "non-residential area" and abutting an area categorised as "inner-suburban - urban residential mix" to its east, which has a built-form character type described as:

... built form dominated residential areas with small gardens (if any) and minimal front and side setbacks.

1. The design objectives for non-residential areas include:

Allow flexibility in built form in areas with a course urban grain (larger lots, fewer streets and lanes)

1. Clause 21.05-2 Urban design includes Objective 17[2] with the title "To retain Yarra's identity as a low-rise urban form with pockets of higher development". Strategy 17.2 relates to issues relevant to high-rise pockets of development and states that development on strategic redevelopment sites should "generally be no more than 5-6 storeys ..., and then sets out a series of criteria which can be used to support higher buildings (though some of these appear to have no nexus with urban design issues[3].
2. A question that was extensively canvassed in submissions and cross-examination of Mr Milner and Mr Sheppard was whether Council's policies relating to strategic redevelopment sites (Clause 21.05-2) apply to this site or not. We have considered how to interpret the strategies within Objective 17, depending on whether the term "strategic redevelopment sites" had leading capitals or not[4]. We have concluded that it is reasonable to interpret Figure 2 (which is stated as being "indicative only") as confirming the most notable, but not all, strategic redevelopment sites. In the absence of any wording that specifically provides otherwise, we conclude that Objective 17 and the relevant policies should also apply to any other sites that meet the criteria for strategic redevelopment sites as set out in Clause 12.01. It would seem nonsensical to us that otherwise suitable sites could only be classed as strategic redevelopment sites after being included in Figure 2, which would require a planning scheme amendment. Such an approach, would in our view be inconsistent with the strategic directions of Melbourne 2030 and Clause 12 that views sites with particular characteristics as strategic redevelopment sites and encourages their development for higher density residential and mixed use.
3. In our view, Council's previous decision to accept a seven-storey development on this site acknowledges, at least implicitly, that this is a strategic redevelopment site and the policy that affects the adjoining residential area, namely for low-rise development, does not apply to it. It is not open to us to apply the local planning policies in a literal manner, as this would lead to lesser development than has been already approved.
4. In this respect, we conclude that much of the cross-examination of Mr Milner that related to whether this site formed part of a pocket of high-rise associated with other tall buildings - being the Housing Commission towers to the east, or the tall commercial building on the corner of Elizabeth Street and Shelley Street, to the north - was of limited value[5].
5. The question then is, and this is the most important issue in this case: are an additional two storeys acceptable in the site's context? Messrs Milner and Sheppard thought so, and Mr Hutson thought not.
6. Given our conclusion that this is a strategic redevelopment site, the criteria to assess an increase over the 5-6 storeys proposed in policy (Strategy 17.2) include:
   • Significant upper level setbacks
   • Architectural design excellence
   • Positive contribution to the enhancement of the public domain
   • No off-site amenity impacts
7. While he agreed the western side of the site, adjoining the railway line, could support a building to 5-6 storeys, Mr Hutson considered that the additional two storeys proposed for the tower would dominate views from Garfield Street and Regent Street and from west of the railway reserve. He considered that the site is not a landmark site and there are "no specific contextual conditions that encourage a building of the height proposed; to the contrary, it would be an inappropriate insertion into the urban fabric around the subject site."
8. Mr Sheppard considered that the present industrial character of the MUZ is not highly valued and that this is an area where change is expected, so that the focus should be on the area's future character. This can be guided by policy directions set out in the Planning Scheme at (Clause 21.05-2):

(predominantly) ... low-rise urban form ... in the one to two storey range, with some three and four storey buildings. The pockets of taller buildings include the high-rise housing estates, some industrial (or ex-industrial) complexes and the landmark towers, spires and signs.

1. It seems to us that the high rise element of this proposal satisfies the broader strategic aesthetic set out in the local planning policy at Objective 17.2. This aesthetic is one of pockets of taller buildings, rising above a plinth of low-rise development. It seems to us that, if this aesthetic is to be successful, the pockets of high-rise development should provide a clear contrast with their surroundings. In the context of the Richmond area, an effective building should not be half-way between low-rise and high-rise. In this context, it is acceptable that taller buildings would dominate closer views in ways that would otherwise be unacceptable.
2. In effect, while this urban design aesthetic of occasional high buildings amongst a base of low-rise buildings is not commonly promoted in other municipal policies, we believe that the key to its success is that, where it is applied, it should be applied fully and consistently. Where a strong contrast in building height may be fairly judged as discordant in one policy setting, it can be judged as appropriate in this setting. We do not accept that there is anything intrinsically wrong in having an occasionally dominant building. The fact that strategic redevelopment sites, whether mapped in Figure 2 of the Planning Scheme or emerging in response to the criteria of Clause 12.01, are rare will ensure that such examples of an aesthetic of contrast will also remain rare.
3. From our site inspection and examination of the photomontages, we are concerned that a seven-storey development would be neither high-rise nor low-rise. The photomontages have been prepared for viewpoints relatively close to the site and, using these, it is easy to establish that the seven storeys of the proposal, by themselves, would be visible but as a rather large, inelegant lump. From further away, where there is a view available, the seven storey structure will be clearly visible, but still achieving neither one thing, nor the other. In this context, we consider that the additional two storeys would better fulfil Council's urban design policies.
4. We have considered the issue of any amenity effects of the tower structure or other aspects of the proposal later in this report.

Is the proposal's relationship with Garfield Street acceptable?

1. Council and Mr Hutson were concerned that the tower, from the third-floor level upwards, is too close to Garfield Street and that this would excessively dominate this narrow street. We have concluded that the design of the building demonstrates sufficient upper level setbacks and overall design excellence as to satisfy the criteria of Objective 17.2 and that the building's setback is therefore acceptable.
2. The proposed building effectively abuts the street for the first three levels, has a 3.1-metre setback for the next two and a 5.5 metre setback for the top four levels. The face of the building, at all levels, is strongly complex, being well articulated by a combination of balconies, changes in materials and use of different colours. Both sides of the façade of the top four levels, the tower proper, are also angled back slightly from Garfield Street, further differentiating this element from the levels below.
3. Mr Hutson's concern was that the tower's setback from Garfield Street would be insufficient to prevent the tower dominating this street.
4. Our experience is that the closer one is to a tall building, the less visible is its upper levels: they are too far out of one's normal view. As we observed earlier, the upper elements of a tall building will progressively come into one's comfortable view line as one moves away from the site; but, of course, the available view points will also diminish as one moves away. Mr Hutson agreed, in response to our questions, that the further away a viewer is from the site, the more prominent would be the tower; the closer, the less prominent; also that it would be acceptable to increase the extent of development up to seven storeys.
5. In this case, we conclude that the combination of the 5.5 metre setback for the top four floors (remember, it is only the top two that are effectively under contention) together with the narrowness of Garfield Street itself, renders the effect of the top two levels acceptable in terms of Objective 17.2.
6. Objective 27.1, of Clause 21.03, is also applicable to this locality, and in our view appropriately so, with its non-residential character and larger sites:
   • Strategy 27.1 Allow flexibility in built form in areas with a coarse urban grain (larger lots, fewer streets and lanes).
7. With respect to Clause 22.10-2 Built form and design policy, we also accept Mr. Sheppard's opinion that this semi-industrial area is not one with a valued neighbourhood character and that the design meets the other general objectives of this clause.

Is the design of the Garfield Street interface acceptable at street level?

1. It is our view that the substituted plans provide an acceptable interface to Garfield Street at the street level. The proposed development has a sub basement that protrudes in the order of 1.3 metres above the ground on the Garfield Street frontage. This is necessary to enable the ground level apartments on the western side to be at ground level. The effect of this is that apartments fronting Garfield Street will be higher than the street level. Mr Hutson was critical of this outcome as this potentially creates a visual separation between pedestrians and balconies.
2. In the substituted plans, the balconies of the ground floor apartments and planters have been lowered by 0.3 metre, so that the balconies are 0.9 to 1.15 metres higher than the Garfield Street footpath. We consider that this is a satisfactory design outcome. The variance in height does not prevent casual interaction between people on the footpath and in the apartments. It also removes the need for fences that can prevent casual interaction. We agree that the raised floor levels should not be an impediment to interaction and casual surveillance, provided that the planting materials are low rise ground covers and the like that do not become a barrier to line of sight and interaction.
3. The materials and textures of the Garfield Street façade has been also a matter of on-going refinement. We consider that the façade treatment to the ground floor level has been bland and would be improved by the use of textured stone or similar to become more finely textured and interesting.
4. We agree with Mr McGauran's written advice to Council in which he indicated that the dwelling over the basement entry should have a distinct treatment to provide visual termination and diversity. We agree that the substituted plans illustrate that intention. We also concur that further details of the panel lift wall to the basement need to be provided to ensure that it will be designed to be a significant visual element in Garfield Street façade. We consider that these are matters of fine detail that are best considered in selection of the final palette of materials and colours. The conditions of the permit should ensure that this occurs.

Is the interface to the eastern and southern neighbours acceptable?

1. Dwellings fronting Shelley Street are located to the east of the review site, and dwellings in a former industrial building are located to its south, creating two sensitive interfaces. We agree with the submissions that the interface to the southern properties is acceptable. The proposed building is setback to the southern boundary 3.8 metres at the second level, 9.4 metres to the third level and 12.9 metres to the fourth level. Screening is provided to windows, and the heights and setbacks are largely consistent with those of the refurbished building. The shadows cast by the development will be significantly less than the shadows cast by the existing building on the land.
2. The expert advice generally concurred that the setbacks and heights to the eastern (Shelley Street) residences are satisfactory. The proposed development abuts 32 Shelley Street for only 3.4 metres of its 8 metre rear boundary. Adjacent to 34 to 40 Shelley Street, the development is setback 3 metres to Level 1 and 5.5 metres to Level 2. The eastern wall of the ground floor encroaches above the parapet, but is screened by the retaining wall. The shadow diagrams show a slight increase in shadows on the private open spaces for 36 and 40 Shelley Street, but these meet the required standard.
3. Overlooking of Shelley Street residences from the development is prevented by the inclusion of screens on the east facing windows and balconies within 9 metres of the boundary. We also note that the existing saw-toothed wall on the eastern boundary is to be retained. This will prevent overlooking of the Shelley Street residences from dwellings at the ground level and much of the first floor of the development. Mr Burun, representing his parents who own much of the Shelley Street properties, expressed general satisfaction with the design of the eastern façade.
4. Submitters were concerned with the visibility of the taller elements of the development from the rear yards of the Shelley Street properties. Cross sections of the development illustrate that a person standing in the rear yard of nos.36, 38 or 40 Shelley Street is likely to see only the second floor of the eastern building, and this will screen the taller building behind it. A person in the rear yard of no. 36 Shelley Street may see the upper storeys of the tower. The distance between viewer and the taller tower ranges from 39.5 metres to 53.3 metres. We find the separation of the taller element of the development from the established residential dwellings to be acceptable. The review site forms part of a relatively dense, inner city built form and viewing taller elements in a distance is a common feature in this area, as described in the planning policies. We consider that views of the taller building will not cause detriment to the amenity of the residents to the east of the review site.

Will the proposal provide acceptable internal and external amenity?

1. We understand from the parties that the design of this development has undergone a number of iterations that have been influenced in part by comments by Council and Mr McGauran. In December 2008, McGauran found that an unacceptably large number of units to be reliant on borrowed light to bedrooms and recommended that this be limited to no more than 10% of units. We find that the substituted plans meets this benchmark. We concur with Mr Hutson and Mr McGauran's advice that a number of minor design improvements that are still required to provide satisfactory amenity to their residents. These changes include:
   • Realign the bedroom windows in the light court of Units G10 and G11, 1.11 and 1.12 so they are offset to provide greater visual and acoustic privacy.
   • Install screening devices to unit 1.29 to minimise overlooking and to allow middle distance outlooks.
   • Delete blade wall elements in units 2.08, 2.11 3.04, 3.07, 3.12, 3.13, 4.03 and 4.12 and replace with translucent screens or similar.
   • On west façade consider climber planting on guide wires or similar treatment to reduce graffiti.
   • Include glass louvres (wintergardens) on the rail corridor (west) façade to mitigate noise.
2. We have noted that the central space and the private open space of the dwellings that are orientated to this central spine within the site will be in shade for much of the day. We consider that this is an acceptable amenity outcome for a large inner city development. Mr Sheppard and Mr Hutson also discussed the possible loss of amenity of the private open space areas orientated to the central spine. Some units such as 2.05, 2.06 and 2.07 have balconies just within 9 metres of opposite windows and balconies, and the need for screening was discussed by the experts. We find that this screening should be deleted to enhance the surveillance and overlooking of the central spine and to improve the amenity of these dwellings. In our view, residents who choose to reside in these dwellings will do so knowing that they face a central public open space area and other dwellings, and hence will have neighbours (just) within 9 metres of their dwellings. Being able to enjoy casual surveillance and interaction with others in the development is a better outcome than having people hidden away behind screens.
3. Mr Hutson also submitted that the ground floor units that face east to the boundary brick wall will have limited outlook. Unit G27 would have a living area with windows separated from the brick wall by 1.0 metre. He recommended redesigning that apartment to a one bedroom apartment. He also proposed that unit 1.27, also on the eastern boundary, have a balcony screened to 1.7 metres height. These modifications were not opposed by Mr Cicero, and we consider that they are sensible improvements.

1. It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be affirmed and a permit granted with varied conditions.
2. The permit will include conditions that have regard to the submissions and evidence of the parties, and the matters that arise from our reasons, as discussed above.

1. Before the 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 VCAT revised plans dated 22 September 2009, but modified to show:

(a) lighting at the pedestrian entrance of the site and within common property areas that accord with the requirements of Condition 12;

(b) an area (including dimensions with maximum height) for plant and equipment on the roof of the building that is obscured in view lines from surrounding streets and from neighbouring dwellings;

(c) the environmentally sustainable design features of the building that are described in the environmentally sustainable principles report referred to in condition 11;

(d) an updated landscape plan to the satisfaction of the responsible authority, prepared by a suitably qualified person. When approved, the landscaping plan will be endorsed and will form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

1. the location of all areas to be covered by lawn or other surface materials;
2. the location of any permanent structures, furniture or other facilities;
3. the botanical and common names of proposed plant species, quantity, size at planting and maintenance regime;
4. the location and specification of a tank for rainwater collection and re-use in irrigation of landscaping (or alternative);
5. provision of lighting; and
6. detail and location of fencing.

(e) the provision and details of all acoustic and noise attenuation measures prepared by a suitably qualified acoustic engineer to protect the internal amenity of the dwellings from external noise sources, including from surrounding commercial activity and the railway line. The measures must be included on plan;

(f) a waste management plan, including details of all bin storage and collection;

(g) a car parking allocation schedule showing a maximum of one spaces per dwelling, unless a second space is provided in a tandem arrangement, and a minimum of 17 visitor spaces;

(h) details of the letterboxes, and the location of pits and meters;

(i) an updated schedule of colours and materials, including colour samples and coloured elevations/perspectives (modified in accordance with the conditions contained within this permit). The schedule is to particularly address the frontage to Garfield Street;

(j) realign the bedroom windows in the light court of Units G10 and G11, 1.11 and 1.12 so they are offset to provide greater visual and acoustic privacy;

(k) install screening devices to 1.29 to minimise overlooking and to allow middle distance outlooks;

(l) delete blade wall elements in units 2.08, 2.11 3.04, 3.07, 3.12, 3.13, 4.03 and 4.12 and replace with translucent screens or similar;

(m) include on the west façade climber planting on guide wires to reduce graffiti;

(n) include glass louvers (wintergardens) on the rail corridor (west) façade to mitigate noise;

(o) delete screening from the balconies of the dwellings facing the central open space;

(p) redesign dwelling G.27 as a one bedroom dwelling to increase separation to eastern boundary;

all to the satisfaction of the Responsible Authority.

1. All development must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.
2. Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.
3. All new on boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority

1. Existing footpath, kerb and channel, and road pavement surface levels must not be altered without the further written consent of the Responsible Authority.
2. Any damaged road(s) and footpath(s) adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.
3. Any civil infrastructure works including trenching of underground services within a Public Highway will require the re-sheeting of the footpaths and reinstatement of any assets. The cost of these reinstatement and footpath works must be borne by the permit holder and cannot commence without obtaining official consent from the Responsible Highway Authority.

1. No fewer than 155 car parking spaces are to be provided on the land, with a minimum of one car parking space allocated for each residential apartment and a minimum of 17 spaces allocated to visitors.
2. The areas set aside for the parking of vehicles, must:

(a) be provided and completed to the satisfaction of the Responsible Authority prior to the occupation of the development hereby permitted;

(b) thereafter be maintained to the satisfaction of the Responsible Authority;

(c) be made available for such use at all times and not used for any other purpose;

(d) be properly formed to such levels that they can be used in accordance with the endorsed plan; and

1. Before the use of the land commences, a Green Travel Plan must be prepared to the satisfaction of the Responsible Authority following consultation with the Department of Infrastructure (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 alternative modes of transport and objectives for the Green Travel Plan; and
   • (b) outline Green Travel Plan measures for the development including, but not limited to:
     1. household welcome packs - tram, train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers and/or occupiers upon occupation of an apartment;
     2. bicycle parking and facilities available on the land; and
     3. monitoring and review.

1. Except with the consent of the Responsible Authority, before the plans are endorsed a report prepared by a suitably qualified and experienced Environmental Sustainable Design expert must be submitted to the satisfaction of the Responsible Authority and endorsed. The report shall address the ESD principles proposed for the site including but not limited to energy, efficiency, water (retention, storage and use), waste and recycling, building materials, landscaping, ventilation, passive climate control through enclosed winter gardens / louvers and balcony overhangs, hot water system, energy and water efficient appliances, natural ventilation of the building including basement areas and high thermal performance building skin.

1. The development must be provided with external lighting capable of illuminating access to the car parking spaces, pedestrian walkways, dwelling entrances, and entry lobby. Lighting must be located, directed, shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within and beyond the site, to the satisfaction of the Responsible Authority.

1. Provision must be made for the drainage of the site all to the satisfaction of the Responsible Authority.
2. All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed from street view.
3. Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and metres.

1. Prior to the occupation of the dwellings the Permit holder must submit (in consultation with Council) a waste management plan. The plan must be to the satisfaction of the Responsible Authority. Once to the satisfaction of the Responsible Authority, the waste management plan will be approved and must be complied with.
2. Rubbish, including bottles and packaging material, must at all times be stored within the building and screened from external view (except for when collection is to occur the following morning).

1. Before the commencement of the development hereby approved, either:

(a) a certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970; or

(b) an environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the sensitive use;

to the satisfaction of the responsible authority (provided that if there is any point of disagreement between the responsible authority and the appointed environmental auditor, the directions/requirements of the environmental auditor shall prevail). Once the certificate of environmental audit or environmental auditor's statement is approved, this document will be endorsed and will then form part of the permit.

1. 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.
2. The development allowed by this permit must comply with the directions and conditions of any statement of environmental audit issued for the land.
3. Prior to the occupation of dwellings a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.

1. 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.
2. 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.

1. Apartments with exposure to the railway reserve to the west must incorporate appropriate noise attenuation design including double glazed windows, doors and acoustic screens to the satisfaction of the Responsible Authority.
2. Before any works associated with the development start, detailed construction / engineering plans and computations must be submitted to and approved by the Director of Public Transport, Vic Track and Connex. All necessary construction control agreements and indemnity agreements must also be in place prior to works commencing. The plans must detail all excavation of the site and impacts on the railway reserve.
3. The permit holder must take all reasonable steps to ensure there is minimal impact on the daily operation of the rail network during construction of the development unless otherwise agreed in writing with the Director of Public Transport and Connex.
4. Prior to the occupation of the development the permit holder must ensure that all reinstatement works outlined in the approved construction plans are completed to the satisfaction of the Director of Public Transport and Connex.

1. Before any development starts, 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 of all adjacent Council roads and footpaths;

(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;

(f) methods for management of noise and general nuisance;

(j) preferred routes for trucks delivering to the site;

(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;

(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; and

(p) details of the tree protection zone and tree protection measures to be employed during construction, in relation to the street trees along Trenerry Crescent.

1. During the construction, the following must occur:

(a) any stormwater discharged into the stormwater drainage system to comply with EPA 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; and

(f) all site operations must comply with the EPA Publication TG302/92.

1. The development, once commenced, must be completed to the satisfaction of the Responsible Authority.

1. Except with the written consent of the Responsible Authority, deliveries, demolition or construction works must only be carried out between:
   • 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and
   • 9.00 am - 3.00 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit.

All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.

1. This permit will expire if the development is not commenced within two years from the date of this permit. All development must be completed within four years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

[1] The point of this being a mediated decision is that the decision was made by agreement between the parties and did not involve a decision by VCAT.

[2] At the time of the hearing, Objective 17 was numbered as Objective 16, but a new objective has since been introduced at an earlier point in Clause 21.05 and all subsequent Objectives have been renumbered.

[3] For example, the provision of affordable housing and best-practice environmental sustainable design appear to have no nexus with the urban design character of building height.

[4] At one point in the text, this phrase has leading capitals, at another not.

[5] In any case, we also felt that Mr. Milner was attempting to draw an unacceptably long bow in grouping these buildings.